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•OPINION < 

OF 

THE ATTORNEY GENERAL 


ON THE ACT TO REMODEL THE 


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DIPLOMATIC AND CONSULAE SYSTEMS 


THE UNITED STATES. •llef.LoS 

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PAET I: 

ON DIPLOMATIC AGENTS. 



WASHINGTON: 

•A. O. P. NICHOLSON, PUBLIC PRINTER. 

1855. 






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OPINION. 


Attorney General’s Office, 

May 25, 1855. 

Sir: Your communication of the ITtli instant pre¬ 
sents a series of ten questions as to the construction of 
sundry provisions of the act of the last session of 
Congress, entitled “An act to remodel the diplomatic 
and consular systems of the United States.” 

Of these questions, three relate to the appointment 
or compensation of ministers proper or secretaries of 
legation; seven to the appointment and compensation 
of consuls. I propose, in the present communication, 
to dispose of so much only of said questions as regards 
ministers and secretaries of legation. 

These questions are as follows: 

1. “ Can the President, without the advice and consent 
of the Senate, appoint envoys extraordinary and min¬ 
isters plenipotentiary in the place of the ministers 
resident, and a secretary of legation to each of them?” 

2. “If such appointments cannot be or are not made 
before the meeting of the Senate and with its advice, 
can the ministers resident remain in office after the 
30th of June next, and until they are superseded by 
envoys?” 

3. “ If they can remain in office after the 30th of 
June next, can they be paid out of the appropriations, 
and at what rate ?” 

In order to answer these questions intelligently, it 
will be necessary to take into consideration, first, the 
system of diplomatic representation actually existing 



6 


among the powers of Christendom; secondly, the 
course of legislation in the United States hitherto; and 
thirdly, then to connect with these premises the new 
and material provisions of the late act of Congress. 

The modern law of nations recognises a class of 
public officers, who, while bearing various designations, 
which are chiefly significant in the relation of rank, 
precedence or dignity, possesses in substance the same 
functions, rights, and privileges, being agents of their 
respective governments for the transaction of its diplo¬ 
matic business abroad, possessing such pow'ers as their 
respective governments may please to confer, and 
enjoying, as a class, established legal rights and immu^ 
nities of person and property in the governments to 
which they are accredited, as the representatives of 
sovereign powers. 

Disregarding questions of dignity, these diplomatic 
agents might all be denominated either ambassadors^ 
because they are immediate officers of the sovereign; 
or envoys^ because they are persons sent; or ministers^ 
because engaged in service or public duty; orpi'ocU' 
rators^ because they are the proctors of their respective 
governments; or legates^ because officially employed as 
the substitute of the superior; or nuncios^ or internun- 
cios^ because they are messengers to or between gov¬ 
ernments ; or deputies^ because they are deputed; or 
commissioners^ because they hold and discharge com¬ 
missions ; or charges d'affaires, because they are charged 
with business; or agents, because they act for their 
governments. All these and perhaps other designations 
of public ministers are found in the history of modern 
negotiations, the name having no fixed relation to the 
functions or power, or true nature of the office. 


7 


In the simple indication of duties, these public min¬ 
isters would be divisible into three obvious subdivisions 
of difference, namely: first, ambassadors, legates, nun¬ 
cios, internuncios, envoys, ministers, commissioners, 
deputies, charges d’affaires, agents, ordinary, and the 
same extraordinary, that is, s])ecial ^—for the word 
extraordinary in this relation means that and nothing 
more; secondly, procurators, ambassadors, legates, 
nuncios, internuncios, ministers, envoys, commissioners, 
deputies, charges d’affaires, agents, resident, and the 
same non-resident or transient; and thirdly, legates, 
nuncios, ambassadors, procurators, internuncios, envoys, 
ministers, commissioners, deputies, charges d’affaires, 
agents, plenipotentiary, and the same not plenipoten¬ 
tiary or with limited powers. 

But, in the process of time, sometimes to flatter the 
pride of the sovereign represented, or that of the 
representative, or that of the government addressed; 
at other times to indicate shades of difference in 
functions, or in the place or manner of exercising 
them;—under the influence of these and other causes, 
arbitrary and artificial distinctions have grown up in 
the use of titles or names of these officers, which dis¬ 
tinctions of name are for the most part independent of, 
or even absolutely contrary to, the truth and substance 
of the things they pretend to designate. 

Thus it is that the title “ambassador,” in its etymol¬ 
ogy and origin the most equivocal of all the titles in 
the class,—for “ambascia” is “officium vel ministerium 
quodcunque, nohile et ignohiUj^'' and “ ambactus” is 

servus conductitius j"' and “ ambasciata” at this day 
is any message, though borne by a household servant;— 
this title so humble in its origin, has come to designate 


a diplomatic agent of the highest rank in the class, 
because taken to be the most direct representative of 
the sovereign; and thus in fact reviving its original 
use of the personal client or servant of the chief or 
prince. 

Thus it is, also, that the Papal See arrogates to itself 
the appointment of peculiar ministers assumed to belong 
to the highest rank, under the name of legate or nuncio, 
both of which terms are in their nature as ordinary, and 
the latter as humble, as any in the whole category. 

Thus it is also, that the ordinary envoy, or diplomatic 
agent of regular and ordinary functions, is by mere 
titular exaggeration turned into envoy extraordinary, 
while another diplomatic agent, who is no more a 
resident minister than he, and just as much an extra¬ 
ordinary envoy, is denominated merely a minister 
resident. 

Thus it is, also, that in one of the varieties of dip¬ 
lomatic agents, to the title '‘'‘envoy extraordinary^'''' 
which is false, is added the further ^title of “ minister 
plenipotentiary^'''' which is inexact, both in fact and by 
speciality of application; for it is not usual to give to 
any diplomatic agent general plenipotentiary powers, 
but limited ones; and such powers, whatever they may 
be, as are given to envoys, ordinary or extraordinary, 
are frequently given to commissioners, ministers resi¬ 
dent, or even charges d’affaires. 

And thus it is that the title charge d’affaires, 
which is in itself quite as generic and comprehens ve 
as aijy of the others, and may be and often is borne by 
persons exercising as ample and high functions as any 
of the others, has settled into the designation of a 
mere provisional officer, and in dignity of the lowest 
rank. 


9 


As to the title of “commissioner,” which is in fact 
more comprehensive in signification than the others, 
that also, like deputy, when held by a person having 
foreign diplomatic functions, as distinguished from 
functions internal or administrative, has come to have 
something of specific meaning by reason of its verv 
indefiniteness, as implying a diplomatic agent of rank 
and functions undefined either as respects the nature 
of his powers, or the place of exercising them; but 
has more commonly been used to denote a minister, the 
range of whose duties and powers is not confined to a 
particular court, and does not depend on his presenta¬ 
tion there, as illustrated in the example of commission¬ 
ers to negotiate and sign treaties of peace, or to open 
new relations with some foreign power. 

With diplomatic agents thus existing as a class, of 
recognised legal rights, but of irregular and vague 
diversities of title and of power, the Constitution of 
the United States intervenes to lay the foundation of 
their appointment under this Government, in these 
words: 

‘^The President * shall have power, hy and with the 
advice and consent of the Senate, to make treaties, provided 
two-thirds of the senators present concur ; and he shall 
nominate, and, hy and with the advice and consent of the 
Senate, appoint, ambassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other officers 
of the United States, where appointments are not herein 
otherwise provided for, and which shall he established by 
law.’’ 

Thus it is perceived that tie Constitution, specifying 
“ambassadors” only, as examples of a class, empowers 
the President to appoint these and other “public min¬ 
isters,” that is, any such officers as by the law of 
D—2 


10 


nations are recognised as “public ministers,” without 
making the appointment of them subject, like “other 
(non-enumerated) officers,” to the exigency of an au¬ 
thorizing act of Congress. In a word, the power to 
appoint diplomatic agents, and to select for employ¬ 
ment any one out of the varieties of the class, accord¬ 
ing to his judgment of the public service, is a consti¬ 
tutional function of the President, not derived from, 
nor limitable by, Congress, but requiring only the 
ultimate concurrence of the Senate; and so it was 
understood in the early practice of the Government. 

At this period of time, the only pertinent point seri¬ 
ously made was, whether the Senate were to judge of 
the expediency of the mission or negotiation, or only 
of tne fitness of the person. (Marshall’s Life of Wash¬ 
ington, vol. V, p. 370, note; Story’s Com. Const., vol. 
ii, p. 332, note.) It was not pretended that an act of 
Congress constituted the essential prerequisite of the 
rank or designation of a minister, or the institution of 
a mission or negotiation by the Executive. 

Accordingly, at the first session of the first Congress 
of the present United States, an act was passed to es¬ 
tablish the Department of Foreign Affairs, with a Sec¬ 
retary thereof, having charge of the correspondences, 
commissions, or instructions to or with public ministers 
or consuls from the United States, (i Stat. at Large, p. 
28); but no enactment occurs at that session, either in 
the act making appropriations for the service of the 
year, (i Stat. at Large, p. 95,) or in any other, to de¬ 
fine the number or rank of the diplomatic agents of the 
United States. 

Nevertheless, on the 20th of April, 1790, William 
Short was duly commissioned as charge d’affaires in 


11 


France, and William Carmichael in Spain. In each of 
these cases, the designation of the officer was derived 
from the law of nations, and the authority to appoint 
from the Constitution. 

Moreover, on the 13th of October, 1789, Gouver- 
neur Morris received from the President a mere letter 
of instructions, authorizing and requiring him to ascer¬ 
tain and report the intentions of Great Britain in 
regard to the observance of the late treaty of peace, 
and the conclusion of a treaty of commerce. Appoint¬ 
ments of a similar character, it will be noticed here¬ 
after, have been made under every administration of 
the Government. 

Subsequently to these three appointments, and at the 
second session of the first Congress, more specific pro¬ 
vision appears on the subject, in the act “providing 
the means of intercourse between the United States 
and foreign nations,” in substance of the following 
tenor: 

“The President of the United States is authorized to 
draw from the treasury a sum not exceeding forty thousand 
dollars annually, for the support of such persons as he shall 
commission to serve the United States in foreign parts, and 
for the expense incident to the business in which they are 
employed: Provided, That, exclusive of an outfit, which 
shall in no case exceed the amount of one year’s full salary 
to the minister plenipotentiary or charge des affaires to whom 
the same may he allowed, the President shall not allow to 
any minister plenipotentiary a greater sum than at the rate 
of nine thousand dollars per annum, as a compensation for 
all his personal services and other expenses ; nor a greater 
sum for the same than four thousand five hundred dollars 
per annum to a charge des affaires ; nor a greater sum for 
the same than one thousand three hundred and fifty dollars 
to the secretary of any plenipotentiary : And provided, also, 


12 


That the President shall account specifically for all such 
expenditures of the said money as in his judgment can 
he made puhlic_, and also for the amount of such expendi¬ 
tures as he may think it advisable not to specify, and cause 
a regular statement and account thereof to be laid before 
Congress, and also lodged in the proper office of the Treasury 
Department.’' (Act of July 1, 1790, i Stat. at Large, p. 
128.) 

This act is the commencement and the foundation of 
all the legislation of Congress on the general subject. 

It was temporary in terms, being for two years only; 
but at the end of that time it was continued in force 
for one year, together with an additional provision in 
substance as follows: 

In all cases where any sums have issued, or shall here¬ 
after issue, from the treasury, for the purposes of intercourse 
or treaty with foreign nations, in pursuance of any law, the 
President is authorized to cause the same to be duly settled 
annually with the accounting officers of the treasury, in 
manner following, that is to say, by causing the same to be 
accounted for specifically, in all instances wherein the ex¬ 
penditure thereof may in his judgment be made public; 
and by making a certificate, or causing the Secretary of 
State to make a certificate, of the amount of such expen¬ 
ditures as he may think it advisable not to specify; and 
every such certificate shall be deemed a sufficient voucher 
for the sums therein expressed to have been expended.” 
(Act of February 9, 1793, i Stat. at Large, p. 299.) 

At the expiration of the year, the foregoing act was 
continued for another term, with an additional section 
appropriating one million dollars to defray any ex¬ 
pense which might be incurred in relation to the 
intercourse between the United States and foreign » 
nations, to be applied under the direction of the Presi¬ 
dent. (Act of May 26, 1794, i Stat, at Large, p. 345. 


13 


In the next Congress, the same act was again con¬ 
tinued with additional appropriations. (Act of May 
30, 1796, i Stat. at Large, p. 487.) 

In the next Congress, another temporary act on the 
subject was passed, repeating in substance the provis¬ 
ions of previous acts, so far as they bear on the ques¬ 
tion of the appointment and compensation of ministers 
and the powers of the President. (Act of March 19, 
1798, i Stat. at Large, p. 541.) 

But the practice of the Government during all this 
time recognised the right and power of the President 
to designate, and, with the consent of the Senate, 
appoint, public ministers of any rank or denomination 
which the public interest might seem to him to require, 
without regard to the fact, that in acts of Congress the 
only ministers named were of two denominations, min¬ 
ister plenipotentiary and charge d’affaires. Indeed, 
many of the early appointments are of a title of desig¬ 
nation deliberately different from those expressly 
named in the acts of Congress. 

Of these appointments the following examples will 
suffice to prove and illustrate my doctrine: 

On the 21st of February, 1791, David Humphreys 
was duly appointed minister resident” in Portugal. 

On the 12th of January, 1792, Thomas Pickney was 
duly appointed and commissioned by the statute name 
of “minister plenipotentiary” in Great Britain. 

On the 18th of March, 1792, William Carmichael and 
William Short were duly appointed and commissioned 
as “commissioners plenipotentiary” for certain nego¬ 
tiations with Spain. 

These are cases pregnant with instruction. Their 
designations are selected at discretion from the multi- 


14 


plicity of names of ministers which the law of nations 
affords, and, in the case of the highest appointment, 
with judicious omission of the mere parade superaddh 
tion of “envoy extraordinary” to the name of “minister 
plenipotentiary.” One of these appointments has spe¬ 
cial value as to the matter in hand, that of Mr. Hum- 
phrevs, appointed “minister resident,” while the statute 
deignation was minister plenipotentiary. 

All these acts of the Executive, and others of the 
same nature occurring before and since down to the 
present time, are supported by two fundamental princi¬ 
ples, one of public policy, and the other of the Consti¬ 
tution. 

The Constitution gives to the President “power, by 
and with the advice and consent of the Senate, to make 
treaties.” No enabling act of Congress is requisite in 
the premises. Whether, when a treaty has been duly 
made and ratified, there is need or not of an. act of 
Congress to give effect to any of its stipulations, is 
another matter, and wholly irrelevant to the question 
of the power to make a treaty. That undeniably be¬ 
longs to the President and Senate. 

The Constitution also declares that the President 
“shall nominate, and by and with the advice and con¬ 
sent of the Senate appoint, ambassadors, public minis¬ 
ters, and consuls.” I have already said, and I repeat, 
that these words are descriptive of a class existing by 
the law of nations, and they comprehend all which the 
class comprehends. Ambassador, public minister, sig¬ 
nifies all forms or denominations of persons employ¬ 
able as intermediaries between our own and any other 
government. Any such intermediary, according to the 
wants of the public service, may be appointed and 


15 


commissioned by the conjoint executive power of the 
United States; and we shall see in the sequel that the 
President may negotiate a treaty through the interven¬ 
tion of a person not commissioned, or intended to be 
commissioned, on a nomination to the Senate. 

All this power, considerations of public policy re¬ 
quire to be lodged with the Executive; because of the 
nature of diplomatic business, which exacts the use of 
negotiators, single persons to confer with single per¬ 
sons, either at home, and more especially in foreign 
countries. And however the various denominations of 
public ministers may be artificial, yet, practically, dis¬ 
tinctions even of mere dignity, or personal relation, 
are of the most decisive result in human affairs, and 
not to be overlooked without prejudice in the foreign 
affairs of the Government; to say nothing of the ques¬ 
tion of access to the sovereign, which, according to 
diplomatic form and usage, depends on the rank of the 
foreign minister. 

At length, in the sixth Congress, and after ten years 
of ad interim legislation on the subject, the general 
provisions of the previous temporary acts were re¬ 
peated in a permanent form, which thus became the 
settled general statute-idea of the Government. (Act 
of May 10, 1800, ii Stat. at Large, p. 78.) 

No modification of that idea occurred until, in the 
tenth Congress, an act was passed, which, in addition 
to some consular provisions not necessary to be con¬ 
sidered here, contains two important enactments. 

In the first place, instead of a salary of one thousand 
three hundred and fifty dollars for annual compensation 
of “the secretary of any plenipotentiary,” it provides 
a salary of not more than two thousand dollars to “the 


16 


secretary of any legation or embassy to any foreign 
country, or secretary of any minister plenipoten¬ 
tiary.” 

Secondly, it contains a provision to forbid the pay¬ 
ment of salary to any charge d’affaires or secretary not 
duly appointed, in substance as follows : 

To entitle any charge des affaires, or secretary of any 
legation or embassy to any foreign country, or secretary of 
any minister plenipotentiary, to the compensation herein¬ 
before provided, they shall respectively he appointed by the 
President of the United States, by and with the advice aftd 
consent of the Senate ; hut, in the recess of the Senate, the 
President is hereby authorized to make such appointments, 
which shall be submitted to the Senate at the next session 
thereafter for their advice and consent; and no compensa¬ 
tion shall be allowed to any charge des affaires, or any of 
the secretaries hereinbefore described, who shall not be ap¬ 
pointed as aforesaid: Provided, That nothing herein con¬ 
tained shall be construed to authorize any appointment of a 
secretary to any charge des affaires.'' (Act of May 1, 1810^ 
ii Stat. at Large, p. 608.) 

Nothing material of pertinent general legislation 
occurs further until the twenty-seventh Congress, when 
the following law was enacted: 

The President of the United States shall not allow to 
any minister resident a greater sum than at the rate of six 
thousand dollars per annum, as a compensation for all his 
personal services and expenses," with ^^an outfit which 
shall in no case exceed one year’s full salary of such minis¬ 
ter resident." (Act of Aug. 6, 1832, s. 9, v Stat. at Large, 
p. 525.) 

Here is a maximum limitation by statute of the com¬ 
pensation of a minister resident; but neither this nor ♦ 
any other statute enacts that there shall be a public 
officer denominated “minister resident.” 


17 


At a very recent day, Congress—^justly appreciating 
the inconvenience of having a permanent grade of duly 
appointed ministers directly and fully representing the 
country, and yet bearing the name of charge d’affaires, 
and so subject to be confounded with consuls, or other 
persons wholly unofficial, upon whom the temporary 
charge of the archives of the legation might fall by 
reason of the death, disability, or absence of the min¬ 
ister,—indicated by the language of appropriation the 
thought or recommendation of having the commission 
of minister conferred in all cases, instead of that of 
charge d’affaires, but, for those particular cases, retain¬ 
ing unchanged the salary of the last named grade. 
(Act of March 3, 1853, Session Acts 1852-3, p. 203.) 
But neither did this act create, or profess to create, the 
office of minister resident. 

It has been the course of legislation for many years 
to specify, in the annual act making appropriations for 
the civil and diplomatic service of the Government, 
the several foreign missions for which appropriation is 
made; and this legislative practice may have led to 
erroneous impressions as to the constitutional relations 
in this respect of the Executive and of Congress. 

These legislative provisions do not in terms profess to 
be the creation of The offices of minister to Great 
Britain, to France, and to other countries; but only 
the supply of money with which to pay their outfits, 
salaries, and contingencies. I will show by the legis¬ 
lative history of the matter, that it does not in the 
remotest degree raise any implication of these forms of 
appropriation being intended, or in fact operating, as 
the creation of offices, or as either giving power to, 
or taking it away from, the President and Senate. 

D—3 


18 


Of this form of appropriation, the earliest exanjple 
which occurs is in the fifteenth Congress, the last of 
the administration of Mr. Madison. 

It stands in the act “ making appropriation for the 
support of government,” in these words : 

^^For salaries of the ministers of the United States to 
London, Paris, St. Petersburg, Eio Janeiro, Stockholm^, 
Madrid, and the Hague, and their several secretaries of lega¬ 
tion, seventy-seven thousand dollars. 

‘^For outfits of ministers of the United States to London 
and St. Petersburg, eighteen thousand dollars. 

^^For the contingent expenses of the missions aforesaid, 
ten thousand dollars. 

^^For the contingent expenses of the intercourse between 
the United States and foreign nations, eighty thousand 
dollars.’' (Act of April 9, 1818, iii Stat. at Large, p. 422.) 

I quote the provision of the next year, to show the 
whole extent of the innovation, because it contains a 
clause, which then first appears, to legalize injits^ as 
follows: 

^^For salaries to the ministers of the United States to 
London, Paris, St. Petersburg, Kio Janeiro, and Madrid, 
with the salaries of their respective secretaries of legation, 
and the salaries of a charge d’affaires at the Hague and at 
Stockholm, and for the usual allowance of three months’ 
salary payable to the minister at Stockholm, payable on his 
return home, sixty-six; thousand two hundred and fifty 
dollars. 

‘^For outfit fora minister plenipotentiary at Kio Janeiro 
and Madrid, and also for the charges des affaires at London, 
the Hague, and Stockholm, thirty-one thousand five hundred 
dollars. 

^^For the contingent expenses of the missions aforesaid^ 
ten thousand dollars. 

^^For the contingent expenses of the intercourse between 
the United States and foreign nations, thirty thousand dol¬ 
lars.” (Act of March 3, 1819, iii Stat, at Large, p. 501.) 


19 


Now, that all this, and what has followed of the 
same form in subsequent years, is specification of ex¬ 
penditure and appropriation merely, and not creation 
of offices, is demonstrable by inspection of the pre¬ 
vious action of the Government. 

We have observed that President Washington made 
appointments of foreign ministers without reference to 
designations of name in acts of Congress, and that the 
expenses of foreign intercourse were in his time pro¬ 
vided for by acts for that special purpose, but in 
general terms. 

Exceptions to the practice of appropriations of this 
class, in special acts, begin to appear fin the time of Mr. 
John Adams. 

The act making appropriations for the support of 
government passed March 3, 1797, supplies a defi¬ 
ciency in the previous special appropriation for the 
year, made by the act “providing the means of inter¬ 
course between the United States and foreign nations.” 
(i Stat. at Large, p. 500.) 

An act of July 10, 1797, making additional appro¬ 
priations for the support of government, contains an 
item “for defraying the expenses of foreign intercourse 
beyond the appropriations heretofore authorized by 
law.” (i Stat. at Large, page 535.) 

The ensuing year appropriations under this head 
were made by a. special act hereinbefore cited in 
another relation, “providing the means of intercourse 
between the United States and foreign nations.” (Act 
of March 19, 1798, i Stat. at Large, p. 541.) 

The year afterwards, an additional appropriation is 
made for the expenses of intercourse with foreign 
nations, in a general appropriation act. (Act of March 
2, 1799, i Stat. at Large, p. 723.) 


20 


A similar provision is found in the acts making 
general appropriations for both sessions of the next 
Congress. (Act of May 7, 1800, ii Stat. at Large, p. 
66, and of March 3, 1801, ii Stat. at Large, 'p. 120.) 

These acts bring us to. the close of the administration 
of Mr. Adams; and it is to be remembered that, during 
his presidency, we had not only the ordinary missions, of 
which no specific mention comes up in any of the acts, 
but also two very important special missions, in like 
manner unmentioned in any act, namely, the appoint¬ 
ment of John Marshall, Elbridge Gerry, and Charles 
C. Piuckney, as ministers extraordinary to France, in 
1797; and that in 1799, of a similar special mission to 
the same country, composed of Oliver Ellsworth, 
William Y. Murray, and William R. Davie. 

We come now to the administration of Mr. Jefferson, 
throughout which the ordinary course of legislation in 
this matter is uniform, namely, the insertion in the an¬ 
nual appropriation act, “for the support of the govern¬ 
ment,” of an item appropriating so much “for the 
expenses of intercourse with foreign nations.” Just 
those words, and nothing more, disposed of the whole 
question during the time of Mr. Jefferson. (See act of 
May 1, 1802, ii Stat. at Large, p. 188; act of March 2, 
1803, ibid., p, 214; act of March 14, 1804, ibid., p. 
269; act of March 1,1805, ibid., p. 321; act of April 18, 
1806, ibid., p. 388; act of March 3, 1807, ibid., p. 436; 
act of February 10, 1808, ibid., p. 466; act of February 
17, 1809, ibid., p. 524.) 

We then reach the administration of Mr. Madison. 
At first, the practice of the previous administration in , 
this respect was continued; for in the three sessions of 
the eleventh Congress, and in both sessions of the 


21 


twelfth Congress, the same form recurs, of appropria¬ 
tions in the general appropriation act for the support 
of government, of so much “for expenses of intercourse 
with foreign nations.” (See act of Februaay 26, 1810, 
ii Stat. at Large, p. 562; act of February 20, 1811, 
ibid., p. 647; act of February 26, 1812, ibid., p. 690; 
act of March 3, 1813, ibid , p. 829.) 

In the next Congress, a slight change appears. In¬ 
stead of the previous most general expression,—“for 
expenses of intercourse with foreign nations,”—the 
words are: “for the salaries, allowances, and contingent 
expenses of ministers to foreign nations and of secreta¬ 
ries of legation.” (Act of March 24, 1814, iii Stat. at 
Large, p. 111.) The same words appear in the act of 
the next year, (act of February 16, 1815, ibid., p. 
211); and the next, (act of April 16, 1816, ibid., 
p. 283); and the next, (act of March 3, 1817, ibid., p. 
358); and then we come to the act above cited, which 
begins the series of acts in which the several existing 
or anticipated missions are introduced by name. 

It is impossible to believe or imagine that these four 
Presidents, Washington, John Adams, Jefferson, and 
Madison, and the men who participated with them in 
the conduct of public affairs, emphatically the founders 
of this Government, did not understand this thing, or 
understanding it, failed to legislate therein in conformi¬ 
ty with the Constitution. None of the statesmen of 
that whole generation looked to an act of Congress for 
the creation of the office of “public minister.” Nor ig 
anything to the contrary inferable from assumed differ¬ 
ences in constitutional theory on the part of these 
several Presidents. For Mr. Jefferson was the Secre¬ 
tary of State under whom occurred the leading cases of 


22 


the administration of President Washington; and it is 
in the administration of President Jefferson, with Mr. 
Madison as Secretary of State, that the very general 
form of the appropriation most emphatically negatives 
the supposition of the office of “public miuister” being 
the legislative creation of Congress. 

Nevertheless, in the administrations of Presidents 
Jefferson and Madison, ordinary ministers continued to 
be appointed and changed, as in the previous adminis¬ 
trations of Presidents Washington and John Adams; 
and equally signal instances of important special ap¬ 
pointments occur, as in the case of the commissioners 
of Ghent. 

Meanwhile special provision had been made for 
several cases of diplomatic intercourse, which afford 
apt illustration of the policy and theory of the Govern¬ 
ment. 

In the time of Mr. Jefferson, there were two very 
significant acts of this character: one, that of April 3, 
1802, making appropriation for defraying the expenses 
of a particular negotiation, “when the President of the 
United States shall deem it expedient to commence 
such negotiations,” (ii Stat. at Large, p. 139); and that 
of February 26, 1803, which appropriates the sum of 
two million dollars, “for the purpose of defraying any 
extraordinary expense in the intercourse between the 
United States and foreign nations,” (ii Stat. at Large, 
p. 202); and which last provision related to the im¬ 
portant negotiations of that day with France. 

Next in order of date and legislative interest is the 
act of May 4, 1828, “making appropriations for carry¬ 
ing into effect the appointment of a mission to the 
Congress of Panama.” This act provides for the out- 


23 


fits and salaries of two envoys extraordinary and min¬ 
isters plenipotentiary, and a secretary, to the mission to 
the proposed Congress, (iv Slat, at Large, p. 158.) 
Considering that the President has by the Constitution 
power to appoint diplomatic ministers, and that the 
general tenor of legislation is in that sense, we may 
reasonably regard the language of the act establishing 
this mission as the supply of means only, or at most as 
recommendatory; and such, we shall see, was the view 
entertained of it by President John.Q. Adams, by the 
Senate, and by Congress. 

Corresponding to this idea is the language of one of 
the sections of the important act passed at the close of 
the twenty-fifth Congress, in apprehension of imminent 
hostilities with Great Britain, which section makes ap¬ 
propriation “for outfit and salary of a special minister 
to Great Britain, provided the President of the United 
States shall deem it expedient to appoint the sameP 
(Act of March 3, 1839, s. 6, v Stat. at Large, p. 336.) 

Not long afterwards, in the twenty-seventh Con¬ 
gress, an act placed money at the. disposal of the 
President, to enable him to establish the future com¬ 
mercial relations between the United ‘States and the 
Chinese Empire on terms of national equal reciprocity; 
providing only “that the annual compensation to any 
one person employed under this act shall not exceed 
the sum of nine thousand dollars exclusive of outfit;” 
and “that no agent shall be sent by virtue of this act 
unless he shall have been appointed by and with the 
advice and consent of the Senate.” (Act of March 
3, 1843, V Stat. at Large, p. 624 ) 

Under this act, the President appointed a person as 
negotiator, with commissions as commissioner and as 


24 


minister plenipotentiary, and another as secretary of 
legation; since which time annual appropriation has 
been made for the compensation of a diplomatic com¬ 
missioner, and a secretary-interpreter. 

In recent acts, there is appropriation for the salary 
of a commissioner, who has diplomatic functions, to 
reside at the Sandwich Islands; but there is no act 
creating that office. 

There is a long series of special acts appertaining to 
our relations with the various Mohammedan states of 
the Mediterranean and of the Indian seas, and to some 
of the minor states of Asia. Some of these will pass 
under review in treating of the appropriations for 
consuls, through- whom for many years our permanent 
relations with the Barbary and other Mohammedan 
states have been maintained, although treaties were 
negotiated with them by special commissioners. None 
of these acts vary the conclusions of legal doctrine 
derived from other acts of Congress. 

In the management, however, of the public business 
regarding the class of states out of Christendom, we 
find a' body of very strong facts in illustration of the 
power of the Executive to negotiate. 

President Washington granted to David Humphreys, 
on the 2d of March, 1793, without the previous con¬ 
currence of the Senate, a commission as commissioner 
plenipotentiary to treat with Algiers. 

Passing over intermediate incidents of the same 
nature, we come to the case of Charles Bhind, David 
Offley, and Com. James Biddle, who, on the 12th of 
September, 1829, were commissioned by President 
Jackson as joint and several “commissioners of the 
United States” to negotiate, and did negotiate the 
existing treaty between the United States and Turkey. 


25 


The same President, on the 26 of January, 1832, 
appointed Edmund Roberts as “commissioner of the 
United States” to negotiate treaties with the govern¬ 
ments of Cochin China and Siam; the result of which 
was the existing conventions with Muscat and Siam. 

On the 16th of August, 1849, Joseph Balestier re¬ 
ceived from President Fillmore the appointment of 
“special agent of the United States” to Cochin China 
and other parts of southeastern Asia; out of which 
commission came our treaty with Borneo. 

In conclusion of these precedents, we have the late 
case of the appointment of Com. Matthew C. Perry, 
under commission from President Fillmore of the 13th 
of November, 1852, to .negotiate with Japan. 

We have modern examples, indeed, of commissions 
of the same nature for negotiations with some of the 
nations of Christendom, among which the following 
may be noted: 

On the 3d of May, 1838, Nathaniel Niles was com¬ 
missioned by President Yan Buren as “special agent 
of the United States” to the kingdom of Sardinia, and 
as such negotiated our treaty with Sardinia. 

On the 28th of March, 1846, A. Dudley Mann was 
appointed by President Polk “special agent of the 
United States” to treat with sundry states of Germany, 
and as such agent he negotiated the treaty with Han¬ 
over. 

Now, in the case of neither of these appointments, 
covering as they did important negotiations in Europe 
as well as in Asia, was there any authorizing act of 
Congress, any preparatory specific appropriation, nor 
even a commission by and with the advice and consent 
of the Senate., In each instance, the successive Presi- 
C—4 


26 


dents acted, as did the earlier Presidents in consimili 
easily in virtue of their constitutional power “to make 
treaties,” that is, to negotiate and prepare them for 
the consideration of the Senate, just as in virtue of 
direct authority of the Constitution, and Avithout the 
aid of any mere enabling statute, he has power to 
grant pardons for offences against the United States. 

A flood of light is thrown on this whole subject by 
the proceedings and discussion in the Senate, and the 
subsequent action of both Houses, on occasion of the 
nomination of the ministers to the Congress of Panama. 
(See Senate Exec. Journ., vol. iii, pp. 457, 474, 516, 
518.) 

President John Q. Adams, in communicating these 
nominations to the Senate, said by message, that, 
although he deemed the having the United States rep¬ 
resented at that Congress was a measure within the 
constitutional competency of the Executive, yet he 
had not thought proper to take any step in it, before 
ascertaining that his opinion of its expediency would 
concur with that of both branches of the legislature, 
first by the decision of the Senate upon the nomina¬ 
tions to be laid before them, and secondly, by the 
sanction of both Houses to the appropriations, without 
which it could not be carried into due effect. 

Upon these nominations there ensued much debate 
in executive session of the Senate, .terminating in the 
confirmation of the nominations, and the virtual sanc¬ 
tion of the President’s opinion and recommendation. 

The views of the minority appear in the report of 
the Committee on Foreign lielations, which concluded 
with the followiug resolution: 

^^BesolvQd, That it is not expedient at this time for the 


27 


'United States to send any ministers to the Congress of 
American Nations assembled at Panama 

which resolution was rejected by a vote of 19 to 24; 
and in a series of resolutions offered by Mr. Yan Buren, 
and also rejected by the same vote, but one of which, 
in the following words, is pertinent to the present 
question: 

Resolved, That the Constitution of the United States, 
in authorizing the President of the United States to nomi¬ 
nate, and by and with the advice and consent of the Senate 
appoint, ‘ambassadors (and),other public ministers,’ author¬ 
izes the nomination and appointment to offices of a diplo¬ 
matic character only, existing by virtue of international 
laws, and does not authorize the nomination and appoint¬ 
ment, under the name of ‘ministers,’ of representatives to 
an assembly of nations, like the proposed Congress of Pan¬ 
ama,_who, from the nature of their appointment, must he 
mere deputies, unknown to the law of nations, and without 
diplomatic character or privilege.” 

Now, without going out of our way to discuss the 
expediency of the mission to the Congress of Panama 
or the question whether the Federal Governmet could 
constitutionally, even with full consent and concurrence 
of the Congress of the United States, of the President, 
and of the Senate, be represented in such a congress, 
it is only material here to remark, that the whole argu¬ 
ment on both sides concedes that, if the members of 
the congress could be rightfully considered as “public 
ministers” with diplomatic functions and rights, under 
the law of nations, then the appointment of them would 
fall within the proper constitutional functions of the 
President and the Senate. The Constitution, Mr. Yan 
Buren admits, authorizes the nomination and appoint¬ 
ment to offices of a diplomatic character, existing hy 


28 


virtue of international laws^ that is, not depending for 
existence on acts of Congress. 

Unless we took note of these proceedings, and of 
their time and character, the act of Congress making 
appropriation for the mission might seem to constitute 
a source of authority to the President in the premises. 
But the contrary is the fact. The resolution of the 
Senate, advising and consenting to the appointment of 
Eichard C. Anderson and John Sergeant as ministers 
to the Congress of Panama, and of William B. Eochester 
as secretary of the mission, was adopted in that body 
on the 14th of March, 1826. Thereupon the offices 
were filled, and the officers existed, as being, in 
the judgment of , a majority of the Senate, “public 
ministers” by thb law of nations, and if so, then, in 
the judgment of all, ministers of the United States 
by the Constitution. No legislative act of Congress 
had created the offices, or defined the rank and func¬ 
tions of the officers. But thereafter, by act of May 
4th, 1826, Congress made appropriation for the outfit 
and salary of the ministers and salary of the secretary, 
and contingencies of the mission; and thus accepted 
and recognised the officers, already in existence, as 
lawfully existing and duly appointed officers of the 
United States. 

And that whatever doubts Mr. Van Buren had on 
the subject were, as the tenor of his resolution implies, 
not doubts as to the power of the Executive to ap¬ 
point envoys extraordinary for a new mission, and a 
secretary of legation, without any previous enabling 
act of Congress, but whether the mission to Panama 
was, in fact as well as name, a diplomatic mission with- ' 
in the scope of the powers of the United States as a 


29 


government,—is proved by his own subsequent action ; 
for the commission appointing James Biddle, Charles 
Bhind, and David Offley, joint and several plenipoten¬ 
tiary commissioners to the Ottoman Porte, was under 
the direction of Mr Yan Buren as Secretary of State; 
and that commission being issued not only without 
special appropriation or other authorizing legislative 
act, express or implied, but without concurrence of the 
Senate. 

On this full retrospect of the entire legislation and 
executive practice of the Government, it is thus seen 
that there is no law, which prescribes the power, the 
name, the- rank, the number, the time, or the place 
of our public ministers; that when acts of Congress 
mention either of those incidents, it is only to make 
appropriations, or at most to offer suggestive recom¬ 
mendations. 

Of course, it became the established rule for the 
President, by and with the advice and consent of the 
Senate, and according to his and their judgment, to 
appoint such ministers, with such powers, at such times, 
to such places, as the public interest might seem to 
demand, with no limitation save in the fact of there 
being a defined salary for four only of the denomina¬ 
tions of public ministers;—and then, either before or 
after the appointment, presenting estimates for the 
requisite expenditure. At first, as we have perceived, 
appropriation was made in a gross sum to cover all 
the expenses of foreign intercourse, including salaries 
of ministers. Afterwards, and since it grew to be 
customary to make appropriations more specific, the 
practice has been^to make estimates and to pass appro¬ 
priations for the aggregate salaries and outfits, first of 


30 


unenumerated and then of enumerated ministers, sec¬ 
retaries of legation, and charges d’affaires, with specific 
items of appropriations for contingent expenses of 
missions abroad and of foreign intercourse. 

As the President appointed negotiating agents of 
himself, and ministers jDroper with consultation of the 
Senate alone, so he reduced or discontinued a mission 
in his discretion; and his power to make this change 
is impliedly recognised by the express terms of act of 
Congress. (Act of May 18, 1842, no. 195, v Stat. at 
Large, p. 486.) 

The President’s power of appointment is practically 
limited, to a certain degree, by the necessity of ob¬ 
taining appropriations from Congress to defray the ex¬ 
penses of a mission; but this limitation is in effect 
removed by the appropriation of a sum of money for 
the contingent expenses of foreign intercourse, on 
which the President may draw for an appointment 
publicly made, or even for a secret appointment, under 
the power of the President to file a certificate of any 
sum expended without explanation of the object of 
expenditure. Besides which, an officer may lawfully 
be, and occasionally is, appointed, either a statute 
officer or other, without any existing provision for his 
compensation: which, if he be lawfully appointed, 
creates a valid debt against the Government. 

In regard to the possible varieties of diplomatic 
agents, we have in the Constitution “ambassadors” 
and “public ministers,” which includes all the contents 
of the class. That construction of the phrase, in the 
clause of the Constitution defining the power of ap¬ 
pointments, is confirmed by the use of the same words 
in a subsequent clause, which empowers the President 


31 


to ‘‘receive ambassadors and other public ministers,” 
meaning of course all possible diplomatic agents which 
any foreign power may accredit to the United States; 
as also where the same expressions are employed in 
the clause defining the jurisdiction of the courts of the 
United States. « 

In the acts of Congress, we have mention of min¬ 
isters plenipotentiary, envoys extraordinary, special 
ministers, commissioners, ministers resident, charges 
d’affaires, secretaries of a plenipotentiary, and secre¬ 
taries of embassy and legation; and also “agents,” 
so called, who were in fact ministers with special 
powers. But these statute designations are not exclu¬ 
sive. At a time when neither minister resident nor 
commissioner plenipotentiary had ever been mentioned 
in the statutes, the President, with concurrence of the 
Senate, appointed such officers; and Uie appointments 
were constitutional and valid, notwithstanding that 
certain other diplomatic officers, and those only, were 
mentioned in acts of Congress. 

In respect to their functions as related to their titles^ 
the diplomatic agents , of the United States spoken of 
in the acts of Congress are not reducible to any uni¬ 
form rule of designation and consequent rank. In the 
different statutes, we have charges d’affaires of perma¬ 
nent station ; officers of each name with all the powers 
usually accorded to a minister plenipotentiary; com¬ 
missioners accredited to a court, as in the case of the 
minister to the Sandwich Islands, and envoys not 
accredited to any court, as in the case of the ministers 
to the Congress of Panama. 

This Government has never made the appointment 
of “ambassador;” but the Constitution expressly au- 


32 


thorizes it to be done; and the act of Congress, which 
provides for a secretary of legation or “embassy,*” 
evidently points to the same fact. We are not to 
assume that the omission to make this appointment has 
arisen from any doubt of the adaptation of the rank 
of “ambassador” to our institutions. If, by usage in 
Europe, the ambassador enjoys higher privileges be¬ 
cause of his pretended or putative direct relation to 
the sovereign, we may with right demand the conces* 
sion of those privileges for the representative of the 
popular sovereignty of a republic not less than of the 
regal or imperial sovereignty of a monarchy. The 
United States are not bound by agreements in this 
respect, which this or that occasional combination of 
European governments may choose to make. We ac¬ 
quiesce in what is a matter of no account, the classi¬ 
fication of ministers arranged at the congresses of 
Vienna and Aix-la-Chapelle, which puts ambassadors, 
legates, and nuncios, in the first rank; envoys extra¬ 
ordinary and internuncios, in the second; ministers 
resident in the third; and charges d’affaires at the 
bottom of the scale, (Martens, Guide Diplomatique, 
tom. i, p. 1, ch. 3) : but in doing this, we relinquish 
no rights. Regulations which we did not participate 
in, we accept or not as we please. Of course, we can 
by no means admit that ambassadors, and they only, 
have a representative character. Whatever in Europe 
may be the arbitrarily assumed relation of any foreign 
minister to the sovereign of his country, all ministers, 
duly appointed and commissioned by the constitutional 
authorities, are alike the direct “representatives,” as 
they are aptly termed in the statute before me, of the 
United States. 


33 


The republic of the United Provinces has had its 
ambassadors in the courts and congresses of Europe; 
so may they be had by the republic of the United 
States. 

In truth, neither the power nor the functions of a 
public minister with us have the least regard to his 
title. That, and the salary, are questions of dignity 
only. None of our ministers have, in strictness, 
powers, because they are confined by their instructions, 
and still more by the limited powers of the Federal 
Government, from which ensues the necessity of limited 
powers to each one of its functionaries. Within the 
range of constitutional authority, they have such powers 
as the President sees fit to grant, and no more. On the 
other hand, whatever their title of dignity, and what¬ 
ever the salary allowed to support that more or less 
of dignity, they are, each and all, in virtue of their 
commissions under the great seal of the United States, 
the unquestionable representatives ^ro tanto of the 
sovereignty of the United States. 

To complete the statement of existing facts and 
legislation as preliminary to the consideration of the 
new provisions of law presenlj^d to me for construction, 
there is one remaining topic to be discussed, and that 
• is, the relation of diplomatic appointments to the 
Senate. 

That a diplomatic or any other commission, lawfully 
granted by the President alone in recess of the Senate, 
is just as valid as if granted on the approval of the 
Senate, provided it be the case of a vacancy existing 
in the recess, no man doubts. I myself'held such a 
commission, which was not only subject to the question 
formerly entertained, but now obsolete, of whether a 
D—5 


34 


vacancy can exist only as the consequence of an office 
once filled, but to the special question raised by the 
statute, which provided that the commission should not 
be held by any person unless appointed by and with 
the advice and consent of the Senate. 

It was properly decided in this case, by the subse- 
quent vote of the Senate confirming the appointment, 
and the acts performed in virtue of it, that the proviso 
was nugatory, because in derogation of the Constitu¬ 
tion. But a larger inquiry is involved in such a case. 
Does the vacancy-clause of the Constitution apply to 
diplomatic ministers? 

It is the undeniable fact that “public ministers,” as 
a class^ are created by the Constitution and the law of 
nations, not by act of Congress. No act of Congress 
created the offices of minister to Great Britain, France, 
Spain, Portugal, the United Provinces, and other coun¬ 
tries to which ministers were sent by President Wash¬ 
ington. They were not even mentioned in acts of ap¬ 
propriation. And thoughtful men have held that 
wherever no “ambassador” or other “public minister” 
exists at the moment, and the exigency for one springs 
up, there is a “vacancy” m the true spirit of the Consti¬ 
tution. 

It is quite apparent that imperative emergencies • 
may arise during the recess of the Senate, which call 
for the appointment of a diplomatic agent in a perfectly 
new case; as if, in flagranti hello ^ there be propositions of 
peace, which it imports the public interest in the high¬ 
est degree to entertain and to endeavor to bring to a 
prompt conclusion, and which demand instant action. 
Cannot the Presid^ent in such case appoint a ministerial ' 
negotiator ? 


35 


I conceive that undoubtedly he may; and that the 
only questions will then be, first, of the salary of such 
minister, and, secondly, of the titular designation he is 
to receive. And to this effect, it is believed, has been 
the uniform practice of the Government. Which is 
confirmed by the consideration that, as a general rule, 
the “full power,” in virtue of which the agent of the 
United States negotiates and signs a treaty, which is 
the most important and, solemn act of diplomatic 
service, is conferred specially in each case, and may be 
given to a special minister, to the resident minister, to 
the minister resident at some other court, to a justice 
of the Supreme Court, to one of the heads of depart¬ 
ment, to a consul^ to an officer of the navy, to a sim¬ 
ple “citizen of the United States,” or to a special agent 
so called, not a comm^sioned officer of the United 
States, as in the case of Mr. Morris and of others 
selected at the mere discretion of the President. (See, 
for example of each, treaty with Great Britain of 1794, 
convention with France of 1800, treaty with Sweden of 
1816, treaty with Spain of 1819, treaty with Greece, 
treaty with the Porte, treaty with Ecuador, treaty with 
Sardinia,.treaty with Hanover.) 

We have seen how numerous are the cases of nego¬ 
tiating “commissioners” appointed in the recess of the 
Senate. Cases are not wanting of the appointment, 
during the recess, of diplomatic officers of recognised 
statute denominations, but to places where previously 
there had been no office of the particular rank. Thus 
it was in the case of Bailie Peyton, the first envoy ex¬ 
traordinary and minister plenipotentiary to Chile, ap¬ 
pointed August 9th, 1845; and Fletcher Webster, 
appointed April 24th, 1843, the first secretary of lega¬ 
tion to China. 


36 


As to provisional charges dWaires, the cases are 
numerous of their appointment by the President during 
the recess, or by a retiring minister, with the Presi¬ 
dent’s approbation. There is a printed list of numer¬ 
ous appointments of this description, occurring between 
the years 1789 and 1827, contained in a report of that 
year rendered by the Secretary of State (Mr. Clay) in 
answer to a resolution of the House of Representatives, 
in which Mr. Clay says: “So important is it regarded 
to preserve without interruption the diplomatic inter¬ 
course between nations which are mutually represent¬ 
ed by ministers, that, upon the death of a minister, the 
secretary of legation becomes, by established usage, 
ipso facto charge d’affaires until his Government is ad¬ 
vised and provides for the event.” And he adds, that 
the authority for such appointments is believed to be 
furnished by the Constitution of the United States and 
the public law and usage of nations. (Executive docu¬ 
ments, 2d session 19th Congress, No. 73.) 

It would have been impossible for me, without thus 
reviewing the past diplomatic legislation and action of 
the Government, and collecting the results in a connect¬ 
ed view, to make present clearly to my own mind the 
true relation of the new laws to those which have gone 
before them. 1 come now to the act submitted to me 
for examination. 

This act, under date of March 1, 1855, contains 
numerous provisions regarding the diplomatic and 
consular systems of the United States, many of them of 
mere incidental regulation, and others of more funda¬ 
mental legislation; and the first pertinent question, 
which arises on it, is of its general effect and operation ' 
as a statute. 


37 


The commencing section of the act provides that 
“from and after the 30th day of June next, the Presi¬ 
dent of the United States shall, by and with the advice 
and consent of the Senate, appoint representatives of 
the grade of envoys extraordinary and ministers pleni¬ 
potentiary,” with a specified annual compensation for 
each respectively, “ to the following countries,” namely, 
Great Britain, France, Spain, Byssia, Austria, Switzer¬ 
land, Borne, Two Sicilies, Sardinia, Belgium, Nether¬ 
lands, Portugal, Denmark,. Sweden, Turkey, China, 
Brazil, Peru, Chili, Argentine Bepublic, New Granada, 
Bolivia, Ecuador, Venezuela, Gautemala, Nicaragua, and 
the Mexican Bepublic. 

The second and third sections, each enacting in the 
same language,—that is, from and after the day men¬ 
tioned, the President shall, by and with the advice and 
consent of the Senate, appoint,—provides for “secreta¬ 
ries of legation” to each of the countries previously 
named, except China and Turkey, for one of which it 
provides an “interpreter,” and for the other a “dra¬ 
goman;” and also provides for a commissioner to the 
Sandwich Islands. 

The tenor of these three sections of the act is to pro¬ 
vide compensation for “envoys extraordinary and 
ministers plenipotentiary,” not only to places where 
we now have such a minister, but at others also, 
where the present officer is a “minister resident,” and 
to give to each a “secretary of legation.” 

In regard to the form of compensation, the first sec¬ 
tion, applicable to ministers, employs the words: “who 
shall receive an annual compensation for their services 
not exceeding the amount specified herein for each,”— 
and annexes the amount to the name of the country. 


38 


thus: “Great Britain, seventeen thousand five hundred 
dollars;” and the second section employs the same 
precise language and form of enactment regarding 
secretaries of legation. 

The sixth, seventh, and eighth sections provide that 
no one of the above officers shall “be entitled to com¬ 
pensation until he shall have reached his post, and 
entered upon his official duties;” that his compensa¬ 
tion “shall cease on the day that his successor shall 
enter upon the duties of his office;” and that “his 
salary shall not be allowed him” if he be absent from 
the country to which he is accredited more than ten 
days, without leave previously obtained from the Presi¬ 
dent; and the twenty-sixth section repeals all provi¬ 
sions of statute authorizing the payment of outfit and 
infit, clerk hire and office rent, to any minister of the 
United States. 

In the body of the act is one provision in regard to 
appointments, which, like some other things in the act, 
must be deemed directory or recommendatory only, 
and not mandatory:—that, namely, which enacts that 
to these offices, “ the President shall appoint no other 
than citizens of the United States, who are residents 
thereof, or abroad in the employment of the Govern¬ 
ment at the time of their appointment.” The limit of 
the range of selection for the appointment of constitu¬ 
tional officers depends on the Constitution. Congress 
may refuse to make appropriations to pay a person 
unless appointed from this or that category; but .the 
President may, in my judgment, employ him, if the 
public interest requires it, whether he be a citizen or 
not, and whether or not at the time of appointment he * 
be actually within the United States. 


39 


The concluding section of the act, the twenty-seventh, 
is in these words: “The provisions of this act to take 
effect from and after the 30th of June next, any law or 
laws of the United States to the contrary notwith¬ 
standing.” 

Now, in seeking out the proper construction of these 
provisions, it is my plain duty, independently of my 
knowledge of the laudable purposes in which the act 
originated, to inquire in good faith what is its legal 
intendment as it stands on the statute book. 

As the act does not contain any general repealing 
words, either at its commencement or its end, and as 
the concluding section merely provides that the pres¬ 
ent act shall take effect on a given day notwithstanding 
any other law,—which it would have done without 
that clause,—it becomes a very serious question whether 
the act does in fact repeal any provision of law except 
such as it repeals specially, and whether its main effect 
be not merely the enactment of new regulations, par¬ 
ticularly on the subject of compensation. For the 
important provisions, of the act are affirmative only; 
and, as a general rule, affirmative statutes do not repeal 
anything by implication. (Dwarris on Statutes, p. 
474.) This point is not essential to be considered in 
disposing of the present inquiry; but will be, in dis¬ 
posing of the several questions appertaining to consuls, 
vice consuls, and commercial or consular agents. 

Your first inquiry is a double one:—1. Can the Presi¬ 
dent, without the previous advice and consent of the 
Senate, appoint envoys extraordinarj^ in the place of 
the present ministers resident? 2. Can he so appoint a 
secretary of legation to each of them? • 

The solution of this doubt demands careful reflection. 


40 


The enactment-phrase of the act is: From and after a 
certain day, the President shall^ by and with the advice 
and consent of the Senate, appoint. 

Now, it is obvious to say, in the first place, that the 
words “by and with the advice and consent of the 
Senate,” here inserted, do not limit or impair any 
power of appointment or of nominal designation, 
which the President possesses under the Constitution. 
For instance, it is not in the power of Congress, by 
whatever terms of enactment, to take away any such 
power as the Constitution may give him, to change the 
mere title of a minister, or to make temporary appoint¬ 
ments during the recess of the Senate. All expres¬ 
sions in a statute are to be so construed as to give them 
constitutional force if it be possible, ut res magis valeat 
quam loereat Here the words employed have a mean¬ 
ing well settled by their statute-use in other cases, 
which is, to negative the idea that any of the ministers 
mentioned in the act are intended to be such inferior 
officers, the appointment of which may be vested by 
Congress “in the President alone, in the courts of law, 
or in the heads of departments.” 

In the second place, the words “from and after” 
seem obviously to intend only to denote the day when 
the effect of the act, whatever that effect is determined 
to be, shall commence. 

In the third place, the word “shall” must be con¬ 
strued to signify “may;” for Congress cannot by law 
constitutionally require the President to make removals 
or appointments gf public ministers on a given day, or 
to make such appointments of a prescribed rank, or to 
make or not make them at this or that place. He, with 
the advice of the Senate, enters into treaties; he, with 


41 


the advice of the Senate, appoints ambassadors and 
other public ministers. It is a constitutional power to 
appoint to a constitutional office, not a statute power 
nor a statute office. Like the power to pardon, it is 
not limitable hj Congress; which can as well say that 
the President shall pardon all offences of a certain 
denomination and no others, as to say that he shall 
appoint “public ministers” of the grade of “envoy 
extraordinary” and no others. lie may with advice of 
the Senate appoint an ambassador, a commissioner 
plenipotentiary, a minister resident, a charge d’affaires, 
a special agent, a secretary of embassy, a secretary of 
a minister plenipotentiary, notwithstanding the lan¬ 
guage of this act, just as, in past times, he appointed 
a minister resident, a charge d’affaires, a commissioner 
plenipotentiary, without, nay, in seeming contradiction 
with, authorizing provisions of acts of Congress. And, 
as we are not by construction to assume that a legisla¬ 
tive act intends any unconstitutional thing when its 
words can be so construed as to mean a constitutional 
thing, we are therefore not to read this act as requiring 
the President to appoint and maintain a minister of 
the rank of envoy extraordinary at the courts of Lon¬ 
don, Paris, St. Petersburg, Madrid, Mexico, Copen¬ 
hagen, regardless of what may, in his judgment and 
that of the Senate, be the necessities or interests of 
the public service; nor to read it as forbidding him 
to leave either of those legations, or any other, in the 
hands of a mere charge d’affaires. 

Nay, if this unconstitutionality of legislation could 
be ’intended as the purpose of the act, then it is not 
couched in apt language to convey such intendment. 
It contains no phrase or word of universal inclusion 
D—e 


42 


or universal exclusion of rank, or even of perpetuity 
or continuity of rank or appointment. It says that 
the President shall^ on and after a certain day, appoint 
a certain minister; it does not say he shall do this 
continually thereafter and at all times. It does not say 
there shall at all times be a minister of the United 
States at London of a certain grade, and never a minis¬ 
ter of any other grade. And surely, if these things 
had been the intention of the act, it would have let fall 
some expression, or at least one word, declaring or im¬ 
plying such purpose of universality, of constancy, of 
perpetuity, of general inclusion or general exclusion. 

No such expression occurring in the context, we are 
not forced, in the construction of the word “sAa??,” to 
reject its apparent meaning by reason of its unconsti-. 
tutionality. We may stand on the language of the act, 
what it omits to say as well as what it says, and con¬ 
clude that “shall” was not placed here as a word of 
command. 

For it is unreasonable to presume in any circum¬ 
stances, and especially unreasonable to presume on the 
strength of a mere circumstantial and auxiliary verb, 
that Congress intended to enact Avhat is unreasonble; 
as it would be to say,—There shall at all times be a 
minister of a prescribed grade at such a court, regard¬ 
less of contingencies of negotiation and of public honor, 
which may nappen to forbid the appointment of a full 
minister in a given case, and require that the legation 
be left in the hands of a charge d’affaires, or even that 
all diplomatic relations be suspended; contingencies 
which have actually occurred, and may occur again, in 
our relations with Great Britain, with France, with * 
Spain, and with the Mexican republic. Suppose that 


43 


a foreign government refuses to receive a minister from 
tlie United States: must the President nevertheless 
appoint one? Or suppose war declared by or against 
ns: must we nevertheless have a minister in the country 
with which we are at war? Clearly not. Therefore, 
“shall,” in this context, is a word of tense only, not of 
command. 

These conclusions conform to settled rules of statu¬ 
tory construction, according to which “shall” and 
“may” are convertible words, and either of them rep¬ 
resents the other, in obedience to the context, the 
general sense of the statute, and its relation to pre¬ 
existing law. (Dwarris on Statutes, pp. 474, 604.) 

This reasonable construction of the word “shall” is 
confirmed by the tenor and phraseology of a section of 
the act of the same session of Congress making appro¬ 
priations for the civil and diplomatic service, (the 3d,) 
which enacts that the new salaries of envoys extraordi¬ 
nary may, on the day when the new provisions take 
effect, be allowed “to such as may be in office on that 
day without reappointment which is beyond all cavil 
equivalent to saying that it was not the intention of the 
law to require reappointments on that day; for, other¬ 
wise, the expression quoted, nay, the whole provision, 
is quite nugatory, because of impossible application. 

The same section of the civil and diplomatic act con¬ 
tains another clause, which leads to a like conclusion. 
It is in these words: “Nor shall such envoys extra¬ 
ordinary and ministers plenipotentiary be required to 
take with them secretaries of legation, unless they 
should be allowed by the President.” This provision 
is very inaccurately drawn up, because the word “such” 
cannot by possibility refer, as the context and grammar 


44 


demand that it should, to the class of envoys previ¬ 
ously mentioned in the section, that is, the envoys now 
in office, but, to have any sense at all must refer to the 
new class of envoys of whom the section had not pre¬ 
viously made mention. What it means to say is, that 
the new law must not be understood to require the 
President to appoint secretaries of legation. 

It is further to be observed, that there is no phrase 
of the act, except this word “shall,” which professedly, 
or by implication, undertakes to curtail the absolute 
discretion at all times exercised by the President, in 
concurrence with the Senate, to appoint a public min¬ 
ister of such degree as he and they might please for 
any particular mission, or not to appoint any. What¬ 
ever discretionary power in that respect the President 
had before the enactment of this law, he has now. It 
could not be taken from him; for he holds it under 
the Constitution. 

Thus we of necessity reach the conclusion, that the 
true and only effect of the act in this relation, is to 
say, that if, and whenever, the President shall, by and 
with the advice and consent of the Senate, appoint an 
envoy extraordinary and minister plenipotentiary to 
Great Britain, or to Sweden, the compensation of that 
minister shall be so much and no more. It could not 
constitutionally say, and does not pretend to say, that 
if, under any contingencies of plitical relation, it should 
become not possible, not honorable, not expedient for 
the United States to have such a minister of the high¬ 
est rank in Great Britain or in Sweden, and still the 
public honor and interests required the legation to 
be maintained, that it should not be done by means of 
a minister of secondary rank, a minister resident, a 


45 


ch’arge d’affaires, or even an agent without title. It 
does not pretend to say that the President must, con¬ 
trary to the judgment of himself and of the Senate, 
appoint a minister of the highest rank at every court 
of Europe or America. 

In regard to all the possible varieties of diplomatic 
functionaries of the Government, the act leaves them 
where they stood before, in respect to their relation to 
the appointing power of the President. 

In regard to compensation, it provides what it may 
be at each of the courts enumerated for a minister 
of a particular grade, or for a secretary, if such minis¬ 
ter or secretary shall happen to have been appointed. 
If the President see fit to appoint, or to retain, at either 
of these courts, a minister of some other grade, for 
instance, minister resident or charge d’affaires, existing 
laws are to be looked into for knowledge of the rate 
of compensation. This act does not profess to repeal, 
nor does it by possible implication in fact repeal, the 
rate of salary previously fixed for any ministers but 
those of the rank of envoy extraordinary. It with¬ 
draws outfit and infit from all; but it leaves unchanged 
the statute compensation of ministers resident and 
charges d’affaires. 

Indeed, as to the salaries of envoys, its precise and 
sole effect is to substitute a scale of compensation, 
varying according to the court, in place of uniformity 
of maximum; increasing the maximumincase the envoy 
be accredited to Great Britain, France, Spain, Russia, 
Austria, Prussia, China, Brazil, Peru, and the Mexican 
Republic; leaving it unchanged if to Turkey and Chile; 
and reducing it if to Switzerland, Rome, the Two 
Sicilies, Sardinia, Belgium, the Netherlands, Portugal, 


Denmark, Sweden, the Argentine Republic, New Gra¬ 
nada, Bolivia, Ecuador, Venezuela, Guatemala, and 
Nicaragua. 

As to the secretaries of legation, the law increases 
the maximum of those at London, Paris, and Madrid; 
it leaves unchanged those of the secretaries at Berlin, 
St. Petersburg, Rio Janeiro, Lima, and Mexico, and of 
a secretary at Vienna, if the President should see fit 
to appoint one there; and it reduces the salaries of 
secretaries, if the President shall choose to appoint 
any, at Berne, Rome, Naples, Turin, Brussels, the 
Hague, Lisbon, Copenhagen, Stockholm, Santiago de 
Chile, Parana, Bogota, Quito, Caracas, Guatemala, and 
Leon. In all these missions, the President may or not 
appoint secretaries in his discretion, whether he ap¬ 
point envoys extraordinary at the same courts or not. 
For the second section of the act is complete jper se^ 
and its legal effect does not depend on the first, or any 
other section; and thus it serves to undo the negative 
implication of a previous law, which refuses to provide 
for in advance, though it does not forbid, the allowance 
of a secretary to certain descriptions of ministers. In 
this act, the appropriation for secretaries is wholly a 
question of place. 

Nor, in regard to secretaries now in office, and who 
may be retained, does the change of rate of salary 
follow only on reappointment. The amendatory pro¬ 
vision of the appropriation act disposes of this point 
expressly as to ministers plenipotentiary; but that 
amendment is declaratory, and therefore cannot be 
held to impair the proper effect of other provisions, 
although omitting to declare what is their true con¬ 
struction. 


47 


For in truth, as we have seen, these two sections 
have but one possible import, which is, that after a 
certain day, if in point of fact there be such ministers* 
and such secretaries at such and such places, then they 
shall be allowed not exceeding so much' compensation. 
It is the rate of compensation of such officers actually 
in office, whensoever appointed, whether a year ago or 
a year hence. They do not need reappointment to 
entitle them to the benefits or subject them to the 
deductions of the new law. If it allow them more 
salary, they may receive it; if it allow them less, they 
can receive that only; and whatever it takes away in 
the nature of outfit, infit, clerk hire, and office rent, it 
takes away absolutely, whether they are in office under 
an old or a new commission. 

Having thus relieved ourselves of the question what, 
in these respects, the act does or does not require, the 
way is clear to consider what, in the discretionary 
exercise of the authority which in the same respects 
it recognises, the Constitution will permit. 

Can the President, on the given day, appoint envoys 
extraordinary in place of the present ministers resi¬ 
dent, without the present concurrence of the Senate, 
that is, in the recess of the Senate ? 

The act of Congress may be considered in two points 
of view, either as measure of salary only to a “public 
minister,” an officer created by the Constitution and 
the law of nations, or as creating a new statute office. 
If, as the general history of the Government seems to 
show, it be the former case, then the question of ap¬ 
pointment is determined on grounds wholly independ¬ 
ent of the tenor of the act of Congress. 

If, otherwise, it is the case of a new statute office, 


48 


then it is one created prospectively, to take effect in 
the recess of the Senate. In which view of the subject 
the inquiry must be: Does a provision of this nature 
constitute a vacancy which the President can fill by 
temporary appointment under the Constitution ? 

To take away a present commission, though it be 
only for the purpose of granting a new one to the same 
party, certainly occasions vacancy in office. When Mr. 
Jefferson was recalled from France, a vacancy there¬ 
upon existed in that mission, though he was appointed 
Secretary of State. And so a vacaucy happened, to 
which Mr. Bayard was appointed, when Mr. John Q. 
Adams was transferred from Russia to Great Britain. 
I think it must be the same iu cases where the inferior 
commission is terminated by any cause, and a superior 
one bestowed on the same person, in whatever branch 
of the service of the Government. 

But to avoid controversy on this point, let us suppose 
any one of the present ministers resident to resign or 
to die. What must or may the President then do ? 
But for the new act, no one would hesitate to say that 
he might fill the vacancy by the appointment of another 
minister resident. Nor does the act prevent this; for 
we agree that its provisions in this respect are permis¬ 
sive or facultative only, not imperative; and it annuls 
no pre-existing authority. But, whether or not he can 
appoint a minister resident, can he, if the envoy extra¬ 
ordinary be a new officer, make that appointment? 

I do not perceive, in the opinions of my predecessors, 
any determination of this precise question; but their 
general reasoning on the subject of what is a vacancy, 
would induce the conclusion that appointment may, 
in such case, be made. Mr. Attorney General Wirt, 


40 


(Opinion, October 22, 1823, vol. i, p. 412), Mr. At¬ 
torney General Taney, (Opinion, July 19, 1832, vol. i, 
p. 826), and Mr. Attorney General Legare, (Opinion, 
October 22, 1841, vol. ii, p. 1408), have thoroughly 
demonstrated, and conclusively established, as a doc¬ 
trine of administrative law, that the expression of the 
Constitution,—-“all vacancies that may happen during 
the recess,”—-signifies, “all vacancies that may happen 
to exist in the recfess,” or, “when there happen to be any 
vacancies in the recess;” and they concur in the general 
statement that, howsoever a vacancy happens to exist, 
if it exist, it may be filled by temporary appointment of 
the President. They well agree that it is the true spirit 
of the Constitution to have the offices, which Congress 
indicates to be needful by creating them, filled, though 
provisionally, rather than to remain vacant, or to force 
a special call of the Senate. They contradict most ex¬ 
pressly the supposition, that in order to the existence 
of a vacancy, it needs that an office existing shall have 
been once filled by confirmation of the Senate or com¬ 
mission of the President. 

We have, in the case we are now argumenti gratia 
assuming, an office established by Congress, to come 
into existence on a certain day future in recess of the 
Senate. On and after that day the office as such exists. 
Until appointment be made, it is an office vacant. It is 
a vacancy, which, in the words of Mr. Wirt, “happens to 
exist,” and in the words of Mr. Taney, “happens to be.” 
Consequently, it would seem to be a vacancy, which 
may be temporarily filled by the President. 

There is no question here of usurping authority 
not given by Congress; it is only whether a power 
U—7 


50 


expressly, and even too absolutely, conferred, can be 
exercised without infiungement of the Constitution. 
Not only is the permissive purpose of Congress evinced 
by the whole tenor of this act, but also by a clause of 
the civil and diplomatic act for the next fiscal year, 
which appropriates for the full salary during the whole 
year of all the new envoys and secretaries of legation, 
and omits to make in terms any appropriation what¬ 
ever for the compensation of ministers resident. (Ses¬ 
sion Acts 1854-55, p. 659.) 

I reluct, in view of all these considerations, to come 
to the conclusion, and cannot allow myself to think, 
that, ev^n if these were statute offices, and the public 
service should require any one of them to be filled 
during the recess, it could not constitutionally bo 
done. 

These considerations are presented on the premises 
of the act having created legislative offices. But, in 
my judgment, it neither does nor can create the office 
of envoy extraordinary, either as a general office, or 
as a special office at a particular court. If it did this, 
the President might appoint as for a new office under 
the act. So also in truth he might appoint without 
the act, in all contingencies of the power of appoint¬ 
ment under the Constitution, and he can do no more 
under the act. If a vacancy shall occur in the mission 
at London by the resignation of the present incumbent 
during the recess, the President may fill that vacancy 
by an appointment holding good until the end of 
the next session of the Senate. If a vacancy shall 
occur by resignation or death in either of the missions 
now occupied by a minister resident, it may be filled 


51 


in like manner. If the President choose to leave any 
such mission in the charge of a charge d’affaires, he 
can do so : this act does not stand in the Avay. If he 
choose to fill the vacancy with a minister of the rank 
of envoy extraordinary, he may do so : this act defines 
the rate of salary, and the appropriation act supplies 
the money for its payment. If he choose to remove 
any of the present ministers, he can do so, and that 
creates a vacancy, which he may fill by temporary ap¬ 
pointment. He may withdraw from either of the 
ministers resident the commission which that minister 
now holds, and fill the vacancy thus created by giving 
to the same or any other party a temporary commis¬ 
sion as envoy extraordinary. But the act of Congress 
neither professes nor attempts to require this; Con¬ 
gress neither enjoins nor directs that the President 
shall remove incumbents or substitute new commis¬ 
sions ; it only signifies in advance, by the new salaries 
which it provides, its c ncurrence in, and approbation 
of, any such appointment, if either of the contingen¬ 
cies of constitutional power to appoint shall be exer¬ 
cised by the President. It regulates compensation for 
possible appointments, which may happen to be made 
after a certain day, and there its legislative action on 
the appointing power stops. 

But shall the President, during the present recess of 
the Senate, change the personnel^ or essentially modify 
the character, of the whole or of two-thirds of the 
diplomatic corps of the United States? He has the 
constitutional power to do it; and Congress, confiding 
in his disposition to exercise conscientiously his large 
power in this respect, has in substance said, by this 


52 


act and by the corresponding appropriation act,-—We 
complete your power to do this by placing in your 
hands the requisite pecuniary means, and we submit 
the whole question, of public policy or exigency in¬ 
volved, to your executive discretion under the Con¬ 
stitution.—What in these circumstances shall be the 
rule of decision and action ? 

The letter of the Constitution and of the acts of 
Congress empowers the President to make a voluntary 
substitution, either of new officers, or new offices, in 
all these cases; but the spirit of the law demands, or 
counsels, that the acts of the President, however right¬ 
ful in the mere sense of pow*er, shall be subject to the 
guidance and control of the combined elements of 
public duty and responsibility. Primary among these 
undoubtedly is the consideration of what the public 
service in itself requires. If that shall appear to the 
President to dictate a change in all the legations, or 
any of them. Congress invites him to make it, and the 
Constitution authorizes it to be made. If, on the other 
hand, no intrinsic exigency of the public service in¬ 
vokes a change, either general or special, then it would 
seem to be most in harmony with the spirit of the 
Constitution, and not incompatible with the intention 
of Congress, to postpone action in a matter of so much 
gravity, and comprehending so important a branch of 
administration, until the proposed appointments or 
reappointments can be made in consultation with the 
Senate. 

Then, also, if any legislativ^e modifications of the 
new law should be deemed convenient, they can be 
introduced in season to bear upon the appointments 
made. 


53 


These considerations, both of argument and conclu¬ 
sion, apply to the new secretaries of legation; and 
more visibly in regard to delay of appointment in 
their case, for the reason that, as to them, the amenda¬ 
tory provision of the civil and diplomatic appropriation 
act contains direct implication of contemplated reserve 
on the part of the President. 

Your second inquiry is,—“If such appointments 
cannot be, or are not, made before the meeting of the 
Senate, and with its advice, can the ministers resident 
remain in office until they shall be superseded by new 
appointments?” I have no doubt that they may: it is 
the legitimate conclusion of all the foregoing premises 
and considerations. 

Your third inquiry is,—“If they remain, can they be 
paid out of the appropriations made in the civil and 
diplomatic bill for the fiscal year, and at what rate ?” 

There is a standing law, heretofore quoted, which 
enacts that the President shall not allow to any minis¬ 
ter resident a greater sum than at the rate of six thou¬ 
sand dollars per annum, as a compensation for personal 
services and expenses. (Act of August 26, 1842, v 
Stat. at Large, p. 458.) That law is not repealed by 
the present act: it remains in full force, to determine 
the maximum salary of a minister resident. 

In the year 1831, when the mission to the Ottoman 
Porte was first established, the minister was of the 
rank of charge d’affaires, with the ordinary salary and 
outfit of that rank. (Act of March 2, 1831, iv Stat. 
at Large, p. 458.) So it continued until the year 
1839, when appropriation was made for the salary of a 
minister resident in Turkey at the rate of compensa- 


54 


tion of the permanent law. (Act of March 3, 1839, 
V Stat. at Large, p. 345.) Since that time the mission 
has been filled with a minister resident, for whom the 
salary of six thousand dollars has been appropriated 
year after year^ until the last year. (See, for example, 
the act of August 3, 1854, Session Acts, p. 563.) 

If the President sees fit to continue a minister resi¬ 
dent at the Porte, he has the power, by the general 
law, to allow a salary of not exceeding six thousand 
dollars, and the series of appropriations for the mission 
of late years will justify him in allowing that full 
amount. 

As to the other existing ministers resident of the 
United States, if the President sees fit to continue 
them in office, although he may have the power, under 
the general law, to allow to each a salary of six thou¬ 
sand dollars, because the acts of the last session are 
silent on that point; yet, as the act of March 3, 1853, 
which first contemplated the general change of charges 
d’affaires to ministers resident, (Session Acts 1852-3, 
p. 203), and that of August 4, 1854, which pursued 
the same idea, (Session Acts 1854-5, p. 563), only 
provide for the payment of the salary of a charge 
d’affaires, it seems to me that the President ought to 
continue that salary unchanged, in deference to the 
twice expressed will of Congress. 

As to the fund out of which their compensation shall 
be paid, you intimate a query suggested by the lan¬ 
guage of the appropriation,—“ For salaries of envoys 
extraordinary and ministers plenipotentiary of the 
United States, two hundred and sixty-seven thousand 
five hundred dollars,”—which appropriation is con* 




55 


fessedly made, as heretofore stated, on the supposition 
of the new commissions being granted by the Presi¬ 
dent. (Session Acts 1854-5, p. 659.) 

I think, in a matter of this nature, the greater in¬ 
cludes the less; and that, even upon the face of the 
provision, it may be so construed as to be subject to 
draft for the payment of the salaries of the ministers 
resident. 

Indeed, there is a previous law, which enacts that 
“ such portion of the appropriations for foreign mis¬ 
sions as shall remain unexpended by reason of reduc¬ 
tion or discontinuance of missions, if any should be 
made, may be applied to the payment of such allow¬ 
ances as shall become necessary in consequence of such 
reduction or discontinuance.” (Act of May 18, 1842, 
no. 195, V Stat. at Large, 486.) This law assumes and 
accepts the fact, of a mission of less rank being subject 
to take the place of a higher, at the discretion of the 
President, and also construes the appropriations for 
missions as applicable to the entire class of ministers 
bearing the lawful commission of the Government. 

Before closing this paper, it may not be undesirable 
to add a few words of explanation in regard to one 
mission, that to China, which is peculiar in some 
respects. 

We have seen how the.mission originated. The 
first minister, as will appear by reference to the files of 
the Department, held two commissions, one as envoy 
extraordinary and minister plenipotentiary, and the 
other as commissioner plenipotentiary: the purpose 
being that he should act under the former commission 
if he came to be regularly accredited at Peking, and if 
not, under the latter. 


56 


That mission becoming permanently organized on 
the latter basis, the subsequent ministers have each 
received only the appointment of commissioner. 

In reference to this fact it was that Congress, in 
passing the act of August 11, 1848, to carry into effect 
those clauses of the treaty with China which gave to 
our own “authorities” jurisdiction over our own citizens 
in China, (viii Stat. at Large, p. 592,) placed that 
authority in the hands of the “commissioner and the 
consuls of the United States duly appointed to reside 
in China.” (ix Stat. at Large, p. 276.) 

Thus, we now have a statute officer, a commissioner, 
to reside in China, with proper judicial functions, which 
are defined and regulated by Congress in virtue of its 
constitutional power to establish legislative courts of 
justice. 

The present act seems to overlook this fact, as also 
the fact that the minister in China is not accredited to 
the court of Peking, when it provides that the Presi¬ 
dent shall appoint an envoy extraordinary and minister 
plenipotentiary to China. 

The President might now, as in the case of the first 
minister, bestow both commissions on the same person, 
as he would probably do if any proper occasion should 
again arise for the appointment of an envoy extraordi¬ 
nary. If, however, no such occasion should arise, he 
may continue, in my opinion, to appoint a commissioner 
only, who, in the analogy of similar cases, can lawfully 
have allowed to him the rate of salary of the last act 
of appropriation, but cannot have outfit or infit. 

You requested me verbally to touch, in passing, on 
such diplomatic or consular provisions of the act, as 


5V 


might seem to call for commentary, in addition to the 
specific inquiries noted in the memorandum accom¬ 
panying your letter. I have made the suggestions 
which seemed to me pertinent on the first branch of 
the subject, and propose, at an early day, to reply to 
the residue of your communication, regarding the 
changes made by the law in the consular establishment 
of the United States. 

I have the honor to be. 

Very respectfully, 

C. CUSHING. 


Hon. W. L. Marcy, 

Seer star 1 / of State. 


1)~8 




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THE ATTORNEY GENERAL 


ON THE ACT TO REMODEL THE 


DIPLOMATIC AND CONSULAR SYSTEMS 


THE UNITED STATES. 


PAKT II: 

ON CONSULS. 


WASHINGTON: 

A. 0. P. NICHOLSON, PUBLIC PRINTER. 

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CIRCULAR TO UNITED STATES CONSULS AND COMMERCIAL AGENTS. 




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OPINION. 


Attorney General’s Office, 

June 2, 1855. 

Sir : I proceed now to complete my reply to your 
communication of the 17th ultimo, by disposing of so 
much of the same, and of the written memoranda and 
verbal suggestions accompanying it, as relates to the 
consular provisions of the act of the last Congress, 
entitled “An act to remodel the diplomatic and consu- 
lar systems of the United States.” 

That act provides, in its 4th section, as follows: 

“Sec. 3. Andheitfurther enacted, That from and after the 
thirtieth day of June next the President of the United States 
shall, by and with the advice and consent of the Senate, ap¬ 
point consuls for the United States, to reside at the following 
places, who shall receive during their continuance in office 
an annual compensation for their services not exceeding the 
amount specified herein for each, and who shall not he per¬ 
mitted to transact, under the penalty of being recalled and 
fined in a sum not less than two thousand dollars, business 
either in their own name or through the agency of others.” 

The section then goes on to enumerate sundry places, 
in various parts of the world, with salaries annexed to 
each, thus,—“London, seven thousand five hundred 
dollars.” 

The act provides, in its 5th section, as follows: 

“Sec. 5. And he it further enacted, That from and after 
the thirtieth day of June next the President of the United 
States shall, by and with the advice and consent of the 
Senate, appoint consuls and commercial agents for the 
United States, to reside at the following places, who shall 


G 


receive, during their continuance in office, an annual com¬ 
pensation for their services not exceeding the amount speci¬ 
fied herein for each, and who shall he at liberty to transact 
business.” 

And the section then goes on to enumerate sundry 
places, each with salary annexed, some of them thus,— 
“Southampton, one thousand dollars;” and others 
thus,—“ Curacao, five hundred dollars, (commercial 
agent )” 

The 6th and 7th sections declare that no consul or 
commercial agent, who shall, after the thirtieth day of 
June next, be appointed to any of the places herein 
named^ shall be entitled to compensation until he shall 
have reached his post and entered upon his official 
duties; and that the compensation of every consul or 
commercial agent, so appointed to any of the places 
herein named, shall cease on the day that his successor 
shall enter upon the duties of his office. 

The 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th, 
18th, 19th, 20th, 21st, 22d, and 23d sections provide 
various regulations concerning “consuls and commer¬ 
cial agents;” the 9th also, and that alone, mentioning 
“vice consuls” and “consular agents.” 

The 12th section provides as follows: 

“ Sec. 12 . And he it further enacted^ That it shall be the 
duty of consuls and commercial agents to charge the follow¬ 
ing fees for performing the services specified, for which, 
under the. penalty of being removed from office, they shall 
account to the Government at the expiration of every three 
months, and hold the proceeds subject to its drafts : 

^^For receiving and delivering ships’ papers, half cent 
on every ton, registered measurement, of the vessel for 
which the service is performed. 

^ffi^or every seaman who may be discharged or shipped at 


the consulate or commercial agency, or in the port in which 
they are located, one dollar; which shall he paid by the 
master of the vessel. 

^^For every other certificate, except passports—the sign¬ 
ing and verification of which shall be free—two dollars.'’ 

The 28th section declares that the President of the 
United States is “authorized to bestow the title of con¬ 
sul general” upon any consul in Asia or Africa, “when, 
in his opinion, such title will promote the public in¬ 
terest.” 

The 26th section repeals all acts or parts of acts au¬ 
thorizing the payment to consuls of “salaries for clerk 
hire and office rent.” 

The 27tli section provides as follows: 

“Sec. 27. And he it further enacted. The provisions of 
this act to take effect from and after the thirtieth of June 
next, any law or laws of the United States to the contrary 
notwithstanding. ” 

Upon the construction of this act, the first question 
is: Does it supersede the consuls who may be in office 
when it goes into effect? 

My judgment on this point is governed by the con¬ 
siderations stated at length in my letter of the 25th 
ultimo regarding the public ministers of the United 
States, which considerations apply in principle to the 
subject of consuls, and compel me to think that the 
words of enactment,—the President shall from and after 
such a day appoint,—signify only, may appoint,—or 
rather, that such and such compensation shall be allow¬ 
ed, after such day, to such officers of the denomination 
and at the places specified, who shall from and after 
that day be lawfully in office under the Constitution or 
acts of Congress. Of course, the act does not operate, 


8 


either proprio vigor or by compulsion of the Presi¬ 
dent’s will, so as to supersede any consul. I refer to 
that communication for a full statement of the consider¬ 
ations of constitutional right, of legislative and admin¬ 
istrative action, and of statutory construction, which 
bring me to this conclusion. 

It occurs to me, however, that one of those argu¬ 
ments may have additional force of impression, in being 
presented from another point of view. 

The appropriation act provides that the increased 
salaries, which the new act allows from and after a cer¬ 
tain day, may be paid to such existing envoys extra¬ 
ordinary as may not be re-appointed. This clause of 
the appropriation act does not repeal any thing; it only 
assumes that a certain thing may lawfully happen, and 
then declares what is to be intended as the meaning of 
the general act as applicable to that thing in case it 
shall thus happen. That supposed lawful thing is, the 
abstention of the President from re-appointing certain 
envoys extraordinary. Now, this abstention could not 
be lawful if the language of the act, in regard to the 
appointment of envoys from and after a prescribed day, 
implied an obligation imperative on the conscience of 
the President. But the clause of the appropriation act 
admits the legality of the supposed abstention: of 
course the provision of the new law in relation to the 
appointment of envoys, from and after a certain day, 
though absolute in terms, is not to be construed as im¬ 
perative, and was not so intended by Congress, either 
in the sense of inclusion of appointment or of exclusion, 
or as regards either time or nominal designation. 

Now, the same precise words, and in the same collo¬ 
cation, are employed in regard to consuls and commer- 


9 


cial agents, as well as envoys and secretaries of legation; 
and, according to the settled rules of statutory con¬ 
struction, what they mean in one of the cases they 
mean in all. But we have ascertained that the words 
are not imperative in their relation to envoys. Of course 
they are not imperative in their relation to consuls and 
commercial agents, either in the sense of inclusion of 
appointment or of exclusion, or as regards either time 
or nominal designation. 

Neither the present nor any other law of the United 
States professes to define the dilference of meaning be¬ 
tween the terms consul, vice consul, commercial agent, 
and consular agent. Some writers on public law em¬ 
ploy the term “consular agent” as the generic designa¬ 
tion of the class of consular officers, just as “diplomatic 
agent” is often used in a similar generic sense to 
denote all diplomatic officers, the ambassadors and pub¬ 
lic ministers of the Constitution. But the term “con¬ 
sular agent” certainly has a much narrower acceptation 
in the usage of this Government. The language of the 
Constitution, as well when it refers to the appointments 
of our own “consuls,” as when it gives to the courts 
of the United States jurisdiction over foreign “consuls,” 
must be regarded as making this term the true nominal 
designation of the class in our law. 

In the early usage of the Government, we had only 
consuls and vice consuls, both appointed by nomination 
to the Senate; but the present act, in the section where 
it speaks of “vice consuls” and “consular agents,” 
seems to regard them as the subordinates of consuls, 
and not requiring nomination to the Senate; and this 
view of their relation is ill accordance with existing 
usages. (Moreuil, Agents Consulaires, p. 65.) 

C—2 


10 


The act assumes another description of consular func¬ 
tionary, that of “ commercial agent,” as requiring to be 
commissioned by nomination to the Senate, and there¬ 
fore having the same relation to the laws of the United 
States as “consul;” and, in assigning “commercial 
agents” to the colonial ports of the Netherlands, it re¬ 
cognises the existing usage, of applying this designa¬ 
tion to consular officers appointed to countries, where 
no formal recognition of them by exequatur can be de¬ 
manded or obtained by the Government. 

Inspection of the language of public treaties will aid 
us to understand the mutual relation of the several 
grades of “consuls.” 

Our first consular convention with France stipulates 
that either Government may appoint consuls and vice 
consuls, who may establish “agents” in the different 
ports or places of their departments, such agents to 
hold, by “commission from one of the said consuls.” 
(viii Stat. at Large, p. 108.) 

Our previous treaty of commerce with France pro¬ 
vides that each Government may have, in the ports of 
the other, “ consuls, vice consuls, agents, and commis¬ 
saries.” (viii Stat. at Large, p. 28.) 

The same phrase occurs in our first treaty of amity 
and commerce with Sweden, (viii Stat. at Large, p. 74.) 

In a subsequent treaty with the same power, (viii 
Stat. at Large, p. 236,) the phrase employed is consuls, 
vice consuls, and commercial agents, (agents de com¬ 
merce.) It also speaks of “consuls and their deputies,” 
(suppFans.) 

In a treaty with Russia, consuls, vice consuls, com¬ 
mercial agents, (agents commerciaux,) and commissaries 
are classed together as consular officers, (viii Stat. at 
Large, p. 148.) 


11 


But the late consular convention with France is the 
most explicit of all on this point. It makes provision 
for consuls general, consuls, vice consuls, and consular 
agents; the vice consuls and consular agents to be ap¬ 
pointed by the consuls general and consuls, and ap¬ 
proved by their government. (Session Acts 1853-54, 
Treaties, p. 117.) It also provides for “eleves consuls.” 

This convention is framed with reference to the laws 
of France, by which vice consuls and consular agents 
are the “delegates” of the consuls, (Ordon. 26 Octobre, 
1833, Be Clercq, Formulaire, p. 509,) and which estab¬ 
lish the office of eleve consul. (Ordon. 20 Aout, 1833, 
ibid., p. 467.) 

We may conveniently regard the word of the Con¬ 
stitution, “consuls,” as the generic designation of a 
class of public officers existing by public law, and re¬ 
cognised by numerous treaties, who are appointed by 
their government to reside in foreign countries,'and 
especially in sea ports, and other convenient points, to 
discharge administrative, and sometimes judicial, func¬ 
tions in regard to their fellow-citizens, merchants, mari¬ 
ners, travellers, and others, who dwell or happen to be 
in such places; to aid, by the authentication of docu- 
uments abroad, in the collection of the public revenue; 
and generally to perform such other duties as may be 
assigned to them by the laws and orders of their gov¬ 
ernment. 

Congress cannot, by legislative act, appoint or re¬ 
move consuls any more than ministers; but it may in¬ 
crease at will the descriptions of consular officers; it 
may enlarge or diminish their functions; it may regu¬ 
late their compensation; it may distinguish between 
some officers appointable with advice of the Senate, 


12 


and others appointable by the President alone, or by a 
head of department. 

Accordingly, by successive acts of Congress, namely: 
the act of April 14, 1792, (i Stat. at Large, p. 254); 
July 6, 1797, (i Stat. at Large, p. 533); March 2, 1799, 
(i Stat. at Large, p. 690); February 20, 1803, (ii Stat. 
at Large, p. 203); March 3, 1813, (ii Stat. at Large, 
p. 810); April 20, 1818, (iii Stat. at Large, p. 437); 
March 1, 1823, (iii Stat. at Large, p. 737); March 3, 
1836, (iv Stat. at Large, p. 773); July 20, 1840, (v 
Stat. at Large, p, 394) ; March 3, 1843, (v Stat. at 
Large, p. 750); August 11, 1844, (ix Stat. at Large, 
p. 276); July 29, 1850, (ix Stat. at Large, p. 442); 
and by various other incidental provisions of law, 
duties are imposed, and rights conferred, on this class 
of public officers, under the different statute names of 
consuls general, consuls, vice consuls, commercial 
agents, vice commercial agents, and consular agents. 

But all these acts do by no means exhaust the sub¬ 
ject. On the contrary, the important act of 1792 con¬ 
tains a declaratory provision, which is to be understood 
as implied in all other acts of Congress, as follows: 

The specification of certain powers and duties herein to 
he exercised or performed by tlie consuls and vice consuls 
(or other consular officers) of the United States, shall not be 
construed to the exclusion of others resulting from the na¬ 
ture of their appointments, or any treaty or convention under 
which they may act.’’ (Sec. 9.) 

So that, outside of acts of Congress, the functions of 
consuls are indicated, and their duties and rights de¬ 
fined, first, by many general treaties, conventions, and 
consular conventions, entered into between the United 
States and other sovereign powers. 


13 


Then, like other executive officers of the United 
States, consuls are subject to regulations issued by the 
proper head of department. (See Henshaw’s Manual, 
p. 122; Gratiot vs. United States, iv Howard’s R., p. 
80; United States vs. McDaniel, vii Peters, p. 1; 
Aldridge vs. Williams, iii Howard, p. 9.) 

In addition to which, they possess, by the law of 
nations, many functions, rights, and privileges, other 
than such as are defined by convention, by legislative 
act, or by regulation. 

But their appointment remains unchangeably one of 
the organic powers of the Executive, derived from the 
Constitution, not from any act of Congress. 

In illustration of which is the fact, that in the course 
ojf the first three years of the administration of Presi¬ 
dent Washington, and prior to the enactment of the 
first act of Congress on the subject, consuls were duly 
appointed and commissioned, mostly during the sitting 
of the Senate, but some in its recess, for the ports or 
islands of Canton, Madeira, Liverpool, Dublin, Bordeaux, 
Nantes, Rouen, Hispaniola, Martinique, Bilbao, London, 
Surinam, Santa Cruz, Lisbon, Morocco, Copenhagen, 
Bristol; and vice consuls for Cowes, Marseilles, Ham¬ 
burg, Havre-de-Grace, Fayal. 

It is impossible for me to doubt, therefore, that the 
only effect of the new act in this relation is to say, that, 
as to such consuls or commercial agents as shall, on the 
day prescribed, b^ lawfully in office at the respective 
places mentioned, the rate of compensation per annum 
thereafter shall be such as the adl allows. The Presi¬ 
dent may appoint new consuls at any of the places 
mentioned on that or any other date, if he sees fit, be¬ 
cause this the Constitution empowers him to do; but 


14 


this act neither empowers nor requires him to do it: 
all which in this relation it enacts is rate of compensa¬ 
tion for “ consuls” and “ commercial agents” at certain 
places, whenever the same shall be, or may have been, 
appointed; that compensation to take effect on the day 
defined by the act. 

Further to show that this act cannot be reasonably 
construed as intending to require the President to do 
what the Constitution, on* considerations of public 
policy, has entrusted to the sole discretion of the Execu¬ 
tive, may be mentioned the clause of the act which 
says, in words, that the President shall appoint a “con¬ 
sul” at Port-au-Prince. This, if done, would have the 
effect, according to international usage, of placing the 
Haytien empire in diplomatic relation with the United 
States. It is not presumed that such was the purpose 
of the law makers; yet such is the necessary effect of 
the law, if the words '''‘shall appoint” are mandatory in 
operation. If they are mandatory in any case, they 
are in all: if not mandatory in one case, they are so in 
none. 

Another illustration, which this act itself affords, of 
the necessity of leaving the power of determining when 
and at what places to appoint officers of this class, and 
of what rank to appoint them, where the Constitution 
placed it, in the hands of the Executive,—is the provi¬ 
sion for establishing “ commercial agents” in five of the 
colonies of the Netherlands. Thi^ provision has ap¬ 
parent reference to the fact, which once existed, namely, 
the refusal of the Netherlands to receive consuls in 
their colonies. But this fact no longer exists; for the 
convention of January 22, 1855, between the United 
States and the Netherlands, and the ratifications of 


15 


whicli have been exchanged, stipulates for the admis¬ 
sion of consuls general, consuls, and vice consuls, in all 
the open ports of the transmarine possessions of the 
Netherlands. 

Before passing from this part of the act, it may be 
well to observe that the phrase in the 4th section, 
which forbids certain consuls “to transact * * busi¬ 
ness either in their own name or through the agency 
of others,” cannot be taken literally; for if so, the con¬ 
sul could not have any private interests, or even a 
household, all which involve the transaction of business. 
These words must be construed in reference to the 
mischief, which the history of the act shows they were 
intended to remedy, namely, “trading as a merchant,” 
which, undoubtedly, the provision prohibits. In the 
6th section the same phrase of undue generality is 
found, but there it is employed in the sense of per¬ 
mission, and therefore does not need to be carefully 
scrutinized. 

In forbidding consuls “ to transact business,” that is, 
“to trade as merchants,” the 4th section further says, 
“under the penalty of being recalled and fined in a 
sum not less than two thousand dollars.” 

The phrase here used,—“under the penalty of being 
recalled,”—like that in the 12th section requiring the 
consul to collect and account for certain fees “under 
the penalty of being removed from office,” is of dubious 
legality. I do not think dismissal from office can be 
enacted by statute as penalty. What court is to try 
and judge? Is the provision designed for the case of 
impeachment? It does not say this. Does the act 
mean to dictate to the President when to remove a 
public officer? That cannot be. The power of re- 


IG 


moval, and the absolute right to exercise it according 
to his conscience, like the power of appointment, he 
holds by the Constitution. 

Besides, it is neither convenient, nor according to 
the analogies of our political system, to consider re¬ 
moval from office the infliction of a legal penalty. A 
penalty is the result of a legal process. Dismissal from 
office belongs to a different class of administrative or 
political considerations, resting in the mere executive 
discretion of the President. 

On the whole, this provision of the statute must be 
deemed inexecutable. 

No provision is made as to the process, by which 
this fine of two thousand dollars is to be recovered. 
In the case of another violation of duty, the 20th sec¬ 
tion indicates the remedy by indictment under the act 
of July 20th, 1840. Possibly the same remedy would 
apply here; as the act referred to makes consuls and 
commercial agents indictable “for all malversation and 
corrupt conduct in office.” (v Stat. at Large, p. 397.) 
I should be more confident on this point, but for the 
fact of the present act singling out the misdemeanor of 
the 20th section as indictable under the act of July 20, 
1840, and thus raising negative inference as to the ap¬ 
plicability of the penal process of that law to the other 
new definitions of misconduct in office. Possibly the 
present fine, if not recoverable by indictment, might 
be reached by an action of debt in the name of the 
United States. 

The foregoing observations afford a reply to several 
of the points of inquiry verbally indicated by you, and 
also to three others of the questions of the written 
memorandum of the 17th ultimo, namely: 


17 


Can consuls, not newly appointed or reappointed at 
the places named in the act, receive the salaries therein 
affixed to said places respectively ? 

Can the President appoint or retain consuls at places 
where there are now consuls, but with no provision in 
the act for consuls at such places? 

Can the President, by and with the advice of the 
Senate, appoint consuls at places where there are now 
no consuls, and with no provision in the act for consuls 
at such places ? 

To each of these questions, my reply is in the affirma¬ 
tive. The act has operation, in respect of salary, as to 
consuls at the places named, without their being re¬ 
appointed ; such as have been lawfully appointed con¬ 
tinue in office until their present commissions are with¬ 
drawn ; and the President can, with concurrence of the 
Senate, appoint consuls at any place whatever, whether 
they be mentioned in the act or not. 

The appropriation act of the last session of Congress 
contains an item of two hundred and seventy-one 
thousand seven hundred and fifty dollars “for the con¬ 
suls of the United States.” All the observations con¬ 
cerning the similar appropriation for envoys, in the 
same act, apply to this appropriation for consuls. 

The next question is,—Can vice consuls and consu¬ 
lar agents be appointed after this act goes into opera¬ 
tion? 

Undoubtedly. The act provides for consuls or com¬ 
mercial agents at certain places; but does not contain 
any phrase, which, either expressly or impliedly, forbids 
the appointment of consuls or commercial agents at 
other places, or the appointment of vice consuls or con¬ 
sular agents. If it did, the prohibition would be with- 
C—3 


18 


out efficacy. Instead of even professing to do thisj 
although the act provides places and salaries for consuls 
and commercial agents only, yet, in the 9th section, it 
expressly recognises, by name, and regulates, in some 
respects, vice consuls and consular agents. While so 
mentioning and regulating them, it leaves untouched 
the law, whatever it is, by which their existence and 
their functions are determined. 

Next comes the question,—What is the operation of 
this act in respect of fees, so far as regards the consuls 
and commercial agents to whom the act gives salary? 

In order to answer this question satisfactorily, it be¬ 
comes necessary to analyze the various pertinent pro¬ 
visions of the act. 

In the first place, it does not contain any general 
clause of repeal. At its close, instead of the usual 
phrase,—“All acts or parts of acts inconsistent here¬ 
with are hereby repealed,”—it says,—“The provisions 
of this act to take effect,” on a certain day, “any law 
or laws of the United States to the contrary notwith¬ 
standing.” Of course, the section leaves the question, 
of what the act repeals, to depend on other parts of it, 
and its general tenor. 

In the second place, the act in its general tenor is 
affirmative} and the established rule of law in this 
respect is that “an affirmative statute does not repeal 
a precedent affirmative statute; and if the substance be 
such that both may stand together, they shall have a 
concurrent efficacy.” (Dwarris on Statutes, p. 474.) 
Of course, on the point whether any provision of this 
act repeals by implication of identity of subject-matter 
any provision of previous acts, it will be necessary to 
consider whether the two provisions compared are in¬ 
capable of concurrent efficacy. 


19 


If the act professed to revise the question of consu¬ 
lar regulation as a whole, then it might by implication 
repeal former acts. (Bartlett vs. King, xii Mass. R., 
p. 548; Commonwealth vs. Cooley, x Pick. R., p. 40.) 
But this it does not undertake to do. And law does 
not favor repeal by implication. (Snell vs. Bridge- 
water Manufacturing Company, xxiv Pick., p. 296.) 
Hence, a later statute on a given subject, not repealing 
an earlier one in terms, is not to be taken as a repeal 
by implication, unless it is plainly repugnant to the 
former, or unless it fully embraces the whole subject- 
matter. (Goddard vs. Barton, xx Pick., p. 410.) 

In the third place, the act refers to, and amends ex¬ 
pressly, or adopts for new purposes, parts of previous 
acts in several instances; as the acts of February 28, 
1803, and of July 20, 1840, in the 19th section, and 
that of April 14, 1792, in the 21st. Of course it does 
not in other respects repeal those acts. 

Finally, it contains provisions expressly repealing 
particular things assumed to be allowable by previous 
acts: as allowances of “clerk hire and office rent,” in 
the 26th section ; “fees for the signing and verification 
of passports,” in the 13th; and “commissions for re¬ 
ceiving or disbursing wages or extra wages of dis¬ 
charged seamen,” in the 14th. Such cases of express 
repeal in a statute, especially of certain individual 
things of a class, are the ordinary implication that all 
other things of the same class remain unrepealed. 

Bearing in mind these premises, let us now see what 
the 12th section of the act says on the subject of fees 
of consuls and commercial agents. 

Its language, we have seen, is very peculiar, as fol¬ 
lows : 


20 


^^Sec. 12. And he it further enacted, That it shall he the 
duty of consuls and commercial agents to charge the follow¬ 
ing fees for performing the services specified, for which, 
under the penalty of being removed from office, they shall 
account to the government at the expiration of every three 
months, and hold the proceeds subject to its drafts: 

For receiving and delivering ships’ papers, half cent on 
every ton, registered measurement, of the vessel for which 
the service is performed. 

For every seaman who may be discharged or shipped at 
the consulate or commercial agency, or in the port in which 
they are located, one dollar ; which shall be paid by the 
master of the vessel. 

For every other certificate, except passports,—the sign¬ 
ing and verification of which shall be free,—two dollars.” 

This provision imposes, in terms, a special duty on 
“consuls and commercial agents,” which is, to collect 
certain fees for the benefit of the Government. 

Does this provision, in terms, forbid the receipt of 
any other fees ? Undoubtedly not. 

Let us assume the case of some other fee, which 
“consuls and commercial agents” are now permitted 
by statute to demand, and reason upon it: for instance, 
the fees for taking charge of, and paying, or delivering 
over, the effects of decedents, citizens of the United 
States, within their jurisdiction. 

The act of April 14, 1792, entitled “An act concern¬ 
ing consuls and vice consuls,” contains the following 
provisions: 

“For the taking into possession, inventorying, selling, 
and finally settling, and pajfing, or transmitting as afore¬ 
said, the balance due on the personal estate left by any citi¬ 
zen of the United States, who shall die within the limits of 
his consulate, five per centum on the gross amount of such 
estate. 


21 


For taking into possession, and otherwise proceeding on 
any such estate, which shall he delivered over to the legal 
representative before a final settlement of the same, as is 
hereinbefore directed, two and a half per centum on such 
part delivered over as shall not he in money, and five per 
centum on the gross amount of the residue/' 

Is this fee withdrawn by the 12th section of the pre¬ 
sent act ? I think not. There is no phrase in it, which 
hints at such repeal. Was it the design of the section 
to require the collection of certain fees, and those only ? 
If so, the section does not say this: it contains not a 
single word of general exclusion or prohibition. 

Nor can it by any established rule of construction be 
held to imply this; for the enactment that it shall be 
the duty of “consuls and commercial agents” to collect 
and pay over to the Government certain particular fees, 
is perfectly compatible with their lawfully demanding 
and receiving other fees, whether the same be or not 
specified as the property of the Government. 

Finally, in another part of the act, there is a pro¬ 
vision which, though out of its natural place, and 
thrown in where it is incidentally as it were, yet must 
be held to settle this point. 

The 21st section has for its main object to amend the 
act of April 14th, 1792, so as to make it the duty of 
the consul, in settling the estate of a decedent, to ob¬ 
serve any directions regarding the same, which the 
deceased may have given “by will or other writing;” 
and, if such were the direction, then to hand over the 
effects to any appointee of the deceased; in which 
case, to the end of protecting the property from local 
interference, the consul is “to place his official seal” on 
it, and to break and remove the same only at the re- 


22 


quest of the appointee: “he, the said consul or com¬ 
mercial agent, receiving therefor two dollars for each 
seal.” Appended to the enactment of a particular fee 
in a particular case is the following general provision: 
“which, like all other fees for consular service, includ¬ 
ing all charges lor extension of protest, as also such 
commissions as are allowed by existing laws on settle¬ 
ment of estates of American citizens by consuls and 
commercial agents, shall be reported to the Treasury 
Department, and held subject to its order.” 

This enactment, which seems to have come in by 
amendment, or at least without recollection of the tenor 
of the 12th section, where it properly belongs, com¬ 
pletes the proof, that the act does not repeal nor modify 
any fees or commissions, except those which it ex¬ 
pressly mentions in that sense, and that it leaves all 
others to stand on existing laws or regulations of the 
Department. 

It remains to consider how the act operates on the 
fees for consular service receivable by consuls and com¬ 
mercial agents. 

By the 12 th a ad 21st sections, together, it is made 
the duty of consuls and commercial agents to hold the 
proceeds of fees for consular service subject to the 
order or draft of the Government. 

What shall be done with the proceeds, by the Gov¬ 
ernment, the act does not determine. Of course, it 
passes to the account of the unappropriated miscella¬ 
neous funds of the treasury. 

The punishment, indicated for failing thus to account, 
is “the penalty of being dismissed from office.” We 
have seen that this penal provision is without possibility 
of legal effect. 


23 


But another statute supplies the requisite sanction. 
The act, required to be performed, is of such nature, 
as to bring the consuls and commercial agents, of 
whom it speaks, within the purview of the act of Au¬ 
gust 6, 1846, for the better organization of the treasury, 
and for the collection, safe-keeping, and disbursement 
of the public revenue, by one of the sections of which, 
the refusal of any person to pay any draft lawfully 
drawn on him for public money in his hands, is de¬ 
clared to be an indictable felony, (ix Stat. at Large, 
p. 63.) 

In this case, also, as in that of the penal provision 
of the 12th section, we may recur in aid to the act of 
April 14, 1792, and to the bond, which that act re¬ 
quires of consuls, conditioned for the true and faith¬ 
ful discharge of the duties of their office according to 
law. (i Stat. at Large, p. 256.) 

But what are “all other fees for consular service,” 
which, by a seeming afterthought of the act, as inci¬ 
dental to a secondary matter of regulation, and with 
iteration of enactment of the words of destination of 
the 12th section, are thus added to the fees, which con¬ 
suls are to exact hereafter as collectors for the Govern¬ 
ment? 

It is obvious that many fees, which it has heretofore 
been for the interest of the consul to demand on his 
own account, he must now demand as a mere public 
duty for the sole benefit of Government. 

On this point the Government, if, in pursuance of 
the understood theory of the act, it aims, by fees col¬ 
lected, to be indemnified for its outlay in the salaries, 
is brought into immediate conflict of interest with 
every consul, and with every person transacting busi- 


24 


ness with any consul The merchant or shipmaster 
will, of course, desire to pay the least he may; and, 
while the consul will have no personal inducement to 
be critical in exacting “fees for consular service,” he 
will incline to inquire what fees, if any, are not consu¬ 
lar, and so not the property of the Government. 

In determining this point, we have to collate all 
those disconnected parts of the act, which are correla¬ 
tive in sense, to consider them in subordination to the 
general theory of the act, and to compare them with 
previous laws, and with the regulations of the Depart¬ 
ment. 

I venture to submit only some hasty observations on 
the subject. 

To begin,—the tenor of the act, as we have already 
seen, except in the two or three cases where it makes 
change expressly, leaves untouched the question of the 
particular services for which fees are to be charged. 

I now add that it leaves untouched the existing 
regulations of the Department in such matters, and its 
power to make pertinent new regulations. 

The 12th section takes up the tonnage duty, which 
is to be levied hereafter, in place of a fixed fee, for 
receiving and delivering a ship’s papers; the fee of 
one dollar for every seaman discharged or shipped; 
and the fee of two dollars “for every certificate;” and 
gives them to the Government. 

The 21st section disposes of a prescribed fee of two 
dollars for placing the official seal in certain cases on 
the property of decodents, and removing it when duly 
requested, and “all other fees for consular service, in¬ 
cluding all charges for extension of protest, as also 
such commissions as are allowed by existing laws in 


25 


settlement of estates:” all which are given to the Gov¬ 
ernment. 

The 12th section forbids making any charge for the 
signing and verification of passports. 

In case of a revision of the table of fees, this item 
deserves re-examination. I think, under the old sys¬ 
tem, citizens of the United States, travelling in foreign 
countries on busineis or pleasure, as a general thing, 
received from consuls more than they gave in return; 
and that complaints on this point might have come 
with nlore grace from the consuls themselves. Now, 
at any rate, when consuls are to receive salaries from 
the Government, but to collect fees with which to re¬ 
imburse the public treasury, it is not easy to see why 
the whole cost of the consular establishment should be 
cast on merchants and shipowners, to the exemption of 
wealthy travellers, who may happen to have occasion 
for the seruices of consuls. 

The 14th section prohibits commissions on receiving 
or disbursing the wages of discharged seamen, or 
money advanced to seamen in distress. 

The 26th section, in effect, prohibits any allowance 
to consuls on account of ‘‘salaries for clerk-hire and 
office-rent;” but this applies only to a few exceptional 
cases, for which provision has been made in acts of ap¬ 
propriation. 

I have compared these provisions of law with the 
table of fees now charged at one of the largest ports 
of commerce, and perused the remarks and queries of 
the consul thereon, as communicated to me by your 
letter of the 1st instant, and submit the following 
annotations: 

1. In the terms of the 12th section, a fee of “two 
C~4 


dollars” is to be exacted, in behalf of the Government, 
on “every certificate;” which must be construed to 
mean,—certificate under the seal of the consulate. 

2. The record to be kept by the consul seems to be 
an official duty, and of course the fees therefor belong 
to the Government. 

3. The making of copies is a clerical, not a “ cofi- 
sular service,” and whatever may be paid for copies 
belongs to the consul. 

4. Drawing out a power of attorney, bottomry bond, 
will, or any similar service, is a notarial, not a consular^ 
act; and therefore only the certificate upon it would 
go to account of the Government. 

5. I should have said the same of extending a pro¬ 
test, but for the phrase in another part of the act,— 
“a book for the entry of protests, and in which all 
other official consular acts likewise shall be recorded,”— 
which seems to cover the fact of extending a protest, 
and so to give the fee to the Government. If so, there 
should be a regulation-scale of fees according to the 
length of the protest, as in England. 

6. No “commissions” appear to be disposed of by 
the act, except on wages advanced to seamen, which 
are forbidden, and on the estates of decedents, which 
go to the Government. 

7. I think the fees collected for the Government 
should be in our own coin, or its representative value 
in exchange. 

Without extending these comments, it will suffice to 
suggest, whether it be not expedient that the whole 
subject of consular fees, which the present act leaves 
in its previous indefiniteness, complicated by the new 
provisions, should now be deliberately revised in the 
Consular Bureau of the Department. 


27 


Those acts of a consul, for which compensation was 
charged in the old system, consisted of two great 
divisions, namely: 

1. Fees taken in respect of matters wherein the 
consul’s interposition is required by law, such as the 
custody of ships’ papers, discharge of seamen, pay¬ 
ment of wages or relief-money, certificates of invoices 
and other acts in aid of the revenue laws, and custody 
of the estates of decedents. 

2. Fees taken in respect of matters wherein the 
consul’s interposition is voluntary on the part of the 
person calling for the service, such as the extension 
of protests, the preparation of conveyances, arbitra¬ 
tion, or bottomry bonds, attending sales, attesting 
signatures, and furnishing copies of documents. 

This division, again, is subdivisible into voluntary 
acts, which are consular, and others which are purely 
clerical or notarial: which distinction is expressly re¬ 
cognised by the regulations of the Department. (Con¬ 
sular Instructions of 1838, ch. yiii.) 

To meet all these conditions of the question, other 
governments, in adopting the system of salaries for 
consuls, have been compelled to issue very explicit and 
stringent regulations to secure the full collection of the 
fees due the Government. (See the British “ Order in 
Council” of May 1, 1855, London Gazette, May 11, 
1855; and the French “Ordonnance sur les Droits de 
Chancellerie,” 6 Novembre, 1842, in De Clercq, For- 
mularie, p. 50.) 

How very imperfect our whole system is in the 
matter of these and other details, will be fully appre¬ 
ciated on a perusal of the contents of De Clercq’s 
“Guide des Consulats” and his “Formulaire.” 


28 


Remember, it is certain specified fees, which the act 
of Congress makes it “ the dutij"' of the consul to collect. 
Is it his duty to collect other fees ? Unless his duty 
in this respect be more thoroughly defined, it is to be 
feared that comparatively little of those fees, which 
are uncertain in amount, and for voluntary service, 
or service the demand for which is voluntary, will, or 
can be, compulsorily collected. 

The acts of Congress do not contain a table of com¬ 
missions and fees. They prescribe certain fees appli¬ 
cable to some few only of the acts, which a consul now 
performs. All other fees, including those of the largest 
production, stand on usage and regulation, and require 
to be reconsidered, in connection with other parts of 
the new system proposed by Congress. 

Next comes another most embarrassing question. 
The act does not profess to abolish vice consuls and 
consular agents; on the contrary, it recognises their 
continued existence. How are these to be paid? No 
salary is allowed them. Possibly it was the original 
thought of the act to consider a vice consul or con¬ 
sular agent as the mere deputy, or locum tenens of the 
consul, and to be paid out of the salary of the latter. 
But the act does not say this. 

When a consul is absent from the consular residence 
on leave, it may be that the substitute, who supplies 
his place, ought to receive the salary, or a part of it. 
But the act does not so determine. To the contrary 
of this, in saying, in substance, that, if he be absent 
with permission of the President, his salary,—which if 
he belong to the class of consuls forbidden “to transact 
business,” we may assume to constitute his means of 
subsistence,—shall continue, it implies that the salary 


29 


is not to be enjoyed by his deputy. Perhaps the 
President may order, as the condition of leave to a 
consul, that he shall provide and pay a deputy. It is 
not the general rule, however, in other branches of the 
public service, that a salaried officer, temporarily absent 
from duty on express leave of the President, pays for 
the service of a substitute during such absence. 

The person, thus left by a consul at the consular 
residence in ad interim charge of the consulate, some¬ 
times bears the name of “consular agent;” but that 
designation better describes another class of persons, 
namely, an agent to reside at some other port or place 
depending on the consul. It would seem to be more 
exact to call a substitute employed by the consul on 
the spot his “ deputythe person employed to fill the 
place temporarily, in his absence, “ vice consul and to 
apply the name “consular agent” to consular officers 
employed in outposts within a given consular circum¬ 
scription. 

Perhaps the usage of the Department, in applying 
the name “consular agent” to the supjpleant of an 
absent consul, officiating as consul interino in the 
absence of the consul jpropietario^ grew out of the 
supposition that the vice consuls, by inference from 
the act of 1792, or otherwise, could only be appointed 
by nomination to the Senate: which inference is neg¬ 
atived by the tenor of treaties and of the present act. 
Of course, no obstacle exists to the systematic use of 
the term “ consular agent,” according to its proper 
acceptation. 

Numerous ports exist, which are more or less remote 
from the location of any consul, but in which, never¬ 
theless, consular services are needed on the spot. 


:0 


Must the consul in every such case go there for the 
special occasion ? If so, he incurs expenses, and leaves 
his own port witout his presence. On the other hand, 
if the consular services are not such as must of neces¬ 
sity be performed on the spot, it will be inconvenient 
and expensive for the shipmaster to be compelled to 
to leave his ship, and, perhaps with his officers and 
men, as in extending a protest for instance, to repair 
to the place of residence of the consul. 

Under the old system, the convenience and economy 
of all parties were consulted by the appointment of a 
vice consul or consular agent for such out-ports, as at 
Nuevitas, Cienfuegos, and Manzanilla, in Cuba; such 
agent collecting the fees, and retaining the whole or 
part as compensation for his services, and transacting 
the business under the direction of the consul. (Cons. 
Instructions of 1838, chap, iv, s. 7.) 

But the future relations of this part of the general 
subject-matter seem to have escaped the vigilance of 
Congress. The act does not require the consul to 
travel, at his expense, to and fro between the place of 
his consular residence and the outposts of his consular 
circumscription; it does not require him to divide his 
salary with local vice consuls or consular agents; it 
makes no provision whatever for the case. 

All these contingencies are of ordinary occurence, 
and are provided for in the laws and regulations of 
other goverments paying salaries to consuls, as for 
instance those of the French empire. 

Besides which, the act does not profess, in its 
enumeration of cosuls, to be exclusive; there is no such 
phrase in it as “the following and no other;''' it abol¬ 
ishes no consulates; it neither in fact nor in pretension 


31 


deprives the President of the power to retain consuls 
at places where they now exist, but which are not 
named in the act, and to appoint them where they do 
not now exist; as, for instance, to retain the consul at 
Bilbao or Valencia, at Archangel or Helsingfors, or 
the commercial agent at Larache, or appoint a new 
one at the Moluccas, at Setubal, at Trapani, at Newport, 
or at Bergen. But no salary is allowed by the act to 
any such consul. 

How the act shall be construed in this respect, is not 
a matter of light moment; for the consuls and commer¬ 
cial agents of the act do by no means cover all the 
seaports and centres of commerce and resort through¬ 
out the world, which are visited by our merchant ships 
and merchants, or which, in other respects, need the 
presence and service of some consular representative 
of the United States. 

It certainly was not the intention of the act to crip¬ 
ple the commerce of the country by depriving it of 
the benefit of vice consuls and consular agents, or of 
consuls, at any place where, in the judgment of the 
Executive, such an officer is needed. 

Doubtless, at its next session. Congress will, in its wis¬ 
dom, supply these deficiencies by suitable supplemen¬ 
tal legislation. Meanwhile, we must construe the act 
as it stands. 

I think the only admissible interpretation of it, as it 
stands, is to conclude that the consular officers, of what¬ 
ever denomination, for w^hom salaries are provided by 
the act, are to pay over consular fees which they receive; 
and that all other consular officers, not thus provided for, 
have the right to retain all the lawful fees, which the 
several acts, including this, and the regulations of the 
Department, allow them to demand. 


32 


This construction involves the inconvenience of some 
of the consular officers being compensated by means of 
fees, and others by salaries; which inconvenience, how¬ 
ever, is of little moment, and need be of but tempo¬ 
rary duration, because easily remediable by Congress. 
Meanwhile, the change of relative interest, which the 
new state of facts will introduce between consuls and 
vice consuls, or consular agents, seems to demand some 
corresponding regulations of the Department. 

It may be proper to observe, in this connection, that 
the provision of the act, which requires the consuls 
mentioned in it to pay over the fees which they collect, 
cannot apply to the judicial fees receivable by Ameri¬ 
can consuls in China and Turkey, which are not “ con¬ 
sular fees,” and cannot be considered by this act as 
withdrawn from the special destination ascribed to 
them by the 17th section of the act of August 11, 1848, 
giving certain judicial powers to consuls of the United 
States in China and Turkey, (ix Stat. at Large, page 
276.) 

Indeed, the consuls at the Barbary ports, and in 
general in other Mohammedan countries, must not be 
confounded, in respect of functions or of regulations, 
with the consuls established in the countries of Chris¬ 
tendom. Their condition is referable to peculiar doc¬ 
trines of the law of nations; and they are governed in 
many respects by particular treaties and acts of Con¬ 
gress. (See Wheaton’s Elements, by Lawrence, page 
167, note.) 

In my communication of the 25th ultimo, suggestions 
are made in the relation of public ministers, as to a 
clause in this act, which provides, among other things, 
that no other than citizens of the United State who are 


residents thereof, or who shall be abroad in the employ¬ 
ment of the Goveanment, shall be appointed as diplo¬ 
matic officers, or as “consuls or commercial agents,” 
and that no other than citizens of the United States 
shall be employed as “vice consuls or commercial 
agents,” or as clerks in the offices of either. 

I reiterate, here, the opinion, that this provision has 
effect as recommendation merely, and no more. The 
President, by the advice of the Senate, has the sole and 
and complete power to appoint consuls. 

In respect of clerks, the provision is one of impossi¬ 
ble execution. How are consuls, and clerks of consuls, 
capable of speaking and writing, in every case, the 
language of the country, to be found among citizens of 
the United States? The Government might produce 
such persons, by instituting the grade of “eleves con¬ 
suls;” but it has not done this; and it is not the duty 
of consuls to provide for the education of competent 
linguist clerks, citizens of the United States. Mean¬ 
while, how is the public business to go on? What is 
to be done by the consuls in France, Spain, Portugal, 
Netherlands, and their colonies; in Germany, Denmark, 
Pussia, and in all the countries of Dutch, French, 
Danish, Spanish, Portuguese, America? 

Consider, also, those consuls at places where a small 
salary only is allowed, not sufficient to pay clerk hire, 
perhaps, and where the consul is not forbidden to 
transact business, without which he could not live. 
He hires and pays his own clerk. Is he forbidden to 
employ as clerks the only persons, whom it is morally 
possible for him to employ, and whom he most needs 
in his business? That is the apparent effect of this 
provision; and of necessity, therefore, it must be 
C—5 


34 


treated as directory only, and not mandatory, on the 
consuls. 

As to the consuls themselves, however expedient it 
be, in general, to fill the consulates and commercial 
agencies with citizens of the United States, yet places 
exist where consular services are necessary, but where 
no American resides, or can be tempted to reside by 
the grant of a mere commission as consul, or appoint¬ 
ment as consular agent. Surely, if the Government 
absolutely needs to have a certain service performed in 
a particular place, and there be no American to perform 
it, the service may be performed by a person not Ame¬ 
rican. To assume the contrary, is to push considera¬ 
tions of mere policy to the impolitic result of rendering 
the performance of the public service impossible. 

Suppose that, along the whole coast of Norway, there 
can be no consuls, citizens of the United States. Are 
we therefore to understand, that all the acts of Con¬ 
gress, which assure consular aid to shipwrecked or 
distressed mariners, have become a nullity ? That is 
the practical operation of this provision. 

When the act says, in words, that the Government 
shall not employ as consul or consular agent any person, 
who is not a citizen of the United States, what it says 
in effect is,—when a citizen of the United States hap¬ 
pens, while abroad, to stand in whatever need of con¬ 
sular assistance, he shall not have such assistance, how¬ 
ever great his necessity, because no American resides 
there to be made consul or consular agent. 

What w^ould be the legal operation of an act of Con¬ 
gress, enacting directly, that no citizen of the United 
States abroad, who is in distress, or who needs the ser¬ 
vice of a notary or counsel learned in the law, shall be 


35 


relieved or served unless he employs another American, 
whether such American exist or not? 

Cases occur, also, in which the fittest person for the 
vacant consulate at a given place, and the only person 
who can be induced to accept, is a merchant tempora¬ 
rily residing there, although by birth and education a 
citizen of the United States. Is that person, by such 
abode in a foreign country^ disfranchised? 

That the general disability enacted by the words,— 
“no other than citizens of the United States who are 
residents thereof,”—comprehends residence abroad, 
though retaining citizenship, is proved by the general 
structure of the phrase, which requires residence at 
home, in addition to citizenship, as the qualification of 
appointability. That such ‘^residence,” made the con¬ 
dition of disability, includes temporary absence from 
the United States, such absence as does not lose domi¬ 
cil even, is proved by the only exception to such disa¬ 
bility, which consists of those who shall be abroad in 
the employment of the Government “ at the time of their 
apjpointmenty How much residence abroad disquali¬ 
fies ? How much at home qualifies ? A year, a month, 
or a day ? 

“A citizen of the United States, not resident thereof 
at the timef signifies, in the context .where it here 
stands, one who is in Paris, London, Rome, six months, 
one month, for the purposes of instruction or business. 
Such person is capable of being appointed chief justice 
of the Supreme Court or elected President of the United 
States. Is he incapable of “ being appointed” to a 
mere consular agency ? 

The argument of bare legal construction stands 
thus:—Laws can be executed only through the instru- 


3G 


mentality of agents of execution. There is a body of 
laws for the protection of the rights of citizens of the 
United States in foreign countries, the lawful agents for 
executing which are consuls. Not to appoint consuls 
at the requisite places would be the effectual nullifica¬ 
tion of those lawsy>r (9 tanto^ just as the omission to ap¬ 
point judges, marshals, commissioners, and other offi¬ 
cers of the law, in a given district of the United States, 
would have the effect, in that district, to nullify the acts 
of Congress, and produce the suspension therein of all 
rights and remedies based on the Constitution of the 
Union. If the obstacle to such appointments consist in 
the words of a particular statute, which, if construed as 
mandatory, have all the consequences of annulment to 
the laws in force, we necessarily conclude that Congress 
did not intend such words in a mandatory sense. For 
all the laws injpari materia are to be construed together, 
so as from the whole mass to collect the legal intend¬ 
ment of Congress. 

In deference to this recommendatory enactment in 
the nature of mere departmental regulation, or to con¬ 
siderations of public policy, the President, in making 
appointment of a citizen, may look to the fact where 
he happens at the moment to be; but he has, in my 
opinion, absolute right to select for appointment with¬ 
out regard to that circumstance, subject always to the 
approbation and consent of the Senate. 

It is the constitutional duty of the President to take 
care that the laws be faithfully executed. It is his 
constitutional right to nominate, and, with advice of 
the Senate, to commission, the agents by whom the 
laws are to be executed. If he cannot find fit agents 

O 

of one description, he may, nay, he must employ others, 


37 

or be false to his high obligations as the Executive of 
the United States. 

You suggest a question arising on the 14th section 
of the act, which forbids any consul or commercial agent 
to be directly or indirectly interested in any “profits 
derived from * * * sending home” discharged seamen 
or seamen in distress. 

The act of February 28, 1803, section 4, enacts that 
it shall be the duty of consuls “ to provide for the mari¬ 
ners and seamen of the United States, who may be 
found destitute within their districts respectively, suffi¬ 
cient subsistence and passage to some port in the United 
States, in the most reasonable manner^ at the expense of 
the United States;” and penalties are enacted to compel 
masters of vessels belonging to the United States to 
receive such seamen, on request of the consul, and 
transport them to the United States, receiving as com¬ 
pensation “not exceeding ten dollars for each person.” 
(ii Stat. at Large, p. 204.) 

Now, what is to be done in the case of ports, (and 
such ports exist,) where it happens that many seamen 
are discharged from whaling or other vessels, and no 
reasonable or direct means exist for transporting them 
to the United States, except in a vessel belonging to 
the consul, he being of the class allowed to transact 
business ? 

We cannot dispose of this question by the rule that 
posterior laws repeal prior incompatible ones. The 
act of 1803, and the acts in amendment of it, are not 
repealed by the present act; on the contrary, they are 
expressly recognised as in full force, and especially in 
this particular matter of the duty of consuls towards 
seamen of the United States. 


38 


I suppose the expression in the act,—profits derived 
from * * * sending home” seamen,—refers to the ten 
dollars paid by the Government for every destitute 
seaman transported to the United States. This trans¬ 
portation, with the maximum price allowed, is a burden 
to the shipowner, instead of a profit. If the prohibitory 
provision of the act be applied without exception, it 
will in effect relieve the shipowner in many cases, but 
involve inconvenience to mariners, and additional ex¬ 
pense to the United States. 

I think this provision, which belongs by its nature to 
the class of matters of departmental regulation, must be 
held in law to be directory only, not mandatory, and 
so treated by the Department. 

Question has been suggested also, as to whether the 
discretion given to consuls, in certain cases, by the act 
of July 20, 1840, regarding the amount of wages to be 
exacted of the shipmaster when the seamen are dis¬ 
charged in foreign ports, still continues. I think it 
does: the present act does not seem to contain anything 
affecting that point. 

There is a provision of the act, referred to already in 
another relation, namely, the main one of the 21st sec¬ 
tion, which demands consideration. It is in the follow¬ 
ing words: 

The act of April 14th, 1792, concerning consuls, &c., is 
hereby so amended that, if any American citizen dying 
abroad shall, by will or any other writing, leave special 
directions for the management and settlement by the consul 
of the personal or other property which he may die possessed 
of in the country where he may die, it shall he the duty of 
the consul, where the laws of the country permit, strictly to 
observe the directions so given by the deceased. Or, if such 
citizen so dying shall, by will or any other writing, have 


39 


appointed any other person than the consul to take charge 
of and settle his affairs, in that case it shall he the duty of 
the consul, when and so often as required hy the so-appointed 
agent or trustee of the deceased, to give his official aid in 
whatever way may he necessary to facilitate the operations 
of such trustee or agent, and, where the laws of the country 
permit, to protect the property of the deceased from any in¬ 
terference of the local authorities of the country in which he 
may have died; and to this end it shall also he the duty 
of the consul to place his official seal on all or any portion 
of the property of the deceased as may he required hy the 
said agent or trustee, and to break and remove the same seal 
when required hy the agent or trustee, and not otherwise/' 

In the execution of this provision, consuls will need 
to exercise much discretion and care. 

We are to presume this enactment adds to, or other¬ 
wise changes, the pre-existing law; and the question 
is, in what respect? 

The provisions of the act of April 14, 1792, in rela¬ 
tion to the matter, are, that, in certain cases, if any 
citizen of the United States die abroad, the consul, 
within whose consulate it happens, shall take possession 
of all “personal estate” of the deceased, in the country 
where he dies, inventory it, sell it, collect and pay local 
credits and debts, and remit the balance to the treasury 
of the United States, to be held in trust for the legal 
claimants. 

The contingencies, in which the consul may thus 
collect the assets of a decedent, free them from local 
incumbrance, and remit them to the treasury, are three, 
namely: 1. If the deceased shall have left no “legal 
representative” within the consulate; 2, no “partner 
in trade;” and, 3, no “trustee by him appointed to 
take care of his effects.” 


40 


If, at any time before the collection and transmission 
of the assets shall have been completed, the “legal 
representative” of the deceased appears, then the au¬ 
thority of the consul in regard to the estate ceases, and 
the management of it passes into the hands of such 
legal representative. 

The new act provides, in the first place, that if the 
deceased shall “by will or any other writing leave 
special directions for the management and settlement, 
by the consul^ of the personal or other property which 
he may die possessed of in the country where he may 
die,” it shall be the duty of the consul to observe those 
directions. 

The act does not say ivhat consul j but, by collation 
with the pre-existing law, we may construe this to 
mean, the consul within whose consulate the party 
dies. 

The act in efiect assumes further, that the consul is 
to take possession of “personal and other property.” 
That is to extend the jurisdiction of the consul beyond 
what he previously possessed, and into doubtful re¬ 
gions. 

It is perfectly clear that nothing in the previous acts 
empowers the consul to sell any real estate of the de¬ 
ceased ; nor can the provisions of the present act com¬ 
municate such power, even if directed by will; for the 
will would have to be proved and allowed as such in 
order to pass real estate. Nor can the act be construed 
to intend what it apparently says, that in the “ manage¬ 
ment and settlements^ of the estate, the consul is to ob¬ 
serve any such directions as the deceased may have 
left “by will or any other writing.” If there be a will 
or any writing possessed of testamentary value, there 


41 


will be an executor or administrator, with the will 
annexed, and he must settle the estate according to 

law. 

I presume the sole effect of this part of the section 
to be, that, in the performance of such acts regarding 
the estate as the consul may, by virtue of the act of 
April 14, 1792, lawfully perform, namely, taking the 
custody of the property, preserving it from waste, 
collecting credits, paying local debts, and selliug the 
^personal estate for transmission to the treasury, the 
consul shall, in the absence or non-appearance of the 
executor, co-partner, or other “legal repi'esentative” 
of the deceased, observe such directions as the latter 
may have given him as to such mere provisional acts 
of consular intervention in the estate. 

The new act provides, in the second place, that “if 
such citizen on dying shall, by will or any other 
writing, have appointed any other person than the 
consul to take charge of and settle his afhiirs,” as 
“agent or consul,” then the consul shall officially aid 
such agent or trustee in his duty, and shall, so far as 
he lawfully may, secure the property of the deceased 
to such agent or trustee, as against the interference of 
the local authorities. 

This enactment, like the foregoing one, must be 
understood as having reference only to such acts of a 
lawfully appointed “agent or trustee of the deceased,” 
as any such “agent or trustee” may perform in the 
absence of the “legal representative” of the deceased, 
who, on his appearance, will supersede, not only the 
consul, but any such provisional agent; and in case of 
controversy between such agent or trustee and the 
legal representative of the deceased, it will be the duty 
C—6 


42 


of the consul to aid the latter, to whom the paramount 
and exclusive right to control the property belongs in 
all circumstances. 

To undertake to carry the authority of the consul 
beyond this point, or in any other direction, would be 
to involve him in hazardous responsibility. 

A citizen of the United States is, in almost every sup- 
posable case, a citizen of some State or Territory of 
the United States, or of the District of Columbia. His 
private rights of property and of person depend, all 
but universally, on the law of his State, of his Territory, 
or of the District of Columbia. No act of Congress 
makes general provision for the forms of deeds or wills, 
the distribution of estates of decedents, the regulation 
of contracts, or other things of that nature in the 
affairs of a citizen of the United States. No act of 
Congress can constitutionally do this in regard to the 
citizen of any State, whatever it may do as to the citi¬ 
zen of a Territory, or of the District of Columbia. I, 
for instance, am a citizen of the United States, but a 
citizen, also, of the State of Massachusetts, whose laws 
govern my personal succession. In this respect. Con¬ 
gress has no constitutional power whatever, except in 
some one of my special relations to the Federal Gov¬ 
ernment, as in the imposition of taxes, and in the other 
few and limited matters of federal resort. That gene¬ 
ral immunity from federal legislation in ordinary mat¬ 
ters of private interest is my own imprescriptible right: 
it is also the sovereign right ( f my State. In like 
manner, it is the right of my heirs-at-law. I do not 
lose this right, nor do they, by my temporary absence 
from my State in public employment, or as a merchant, 
or traveller, or any other way, except such as may give 


43 


me citizensliip or local domicil in some foreign country, 
and thus place me and my personal rights, and those 
of my succession, under the jurisdiction of such for¬ 
eign country. These positions are the elementary law 
of the condition of . citizens of the United States. 

Furthermore, it is the all but universally received 
principle of the international law private, that the real 
estate of a decedent goes to his heirs-at-law, and that 
his personal estate is to be distributed according to the 
law of his domicil. (Story’s Conflict of Laws, ch. ix; 
Foelix, Droit International Prive, p. 161; Phillimore on 
Domicil, ch. i.) This rule cannot be changed by an 
act of Congress; for its continued existence, in so far 
as regards our own citizens, is of the rights of the 
States. 

Now, this provision of the act, in requiring the con¬ 
sul to settle the estate of a decedent according to his 
directions “by will or any other wriiing^^ or to deliver 
up the property to any agent or trustee whom he may 
have appointed “by will or any other writing^^ makes 
reservation of “the laws of the country,” and so, per¬ 
haps, by implication, admits exception of the laws of 
the decedent’s domicil, which, in pursuance of the law 
of nations, is respected by every country in Christen¬ 
dom. 

But, after all, this law of the domicil is the great 
exception, which an act of Congress cannot empower 
consuls to disregard, and which they will disregard at 
their proper peril. 

When the present act requires the consul to deliver 
up the estate of a decedent, dying within his jurisdic¬ 
tion, to an appointee under his “will,” if it mean his 
executor, that the consul may do; because by “will” 


44 


is understood a valid testament, lawfully made and 
executed, by a person who is in all respects compos 
testandi: which question must be judged by the law of 
the decedent’s State. 

But, when the act proceeds to say that the consul 
must obey such directions, regarding the settlement 
and the disposal of the decedent’s “personal or other 
property,” as the decedent may have given by “will 
or any other writing and deliver it over to, and pro¬ 
tect in the possession of it, the agent, whom the de¬ 
ceased may have appointed “by will or any other 
writing,”—its injunction must be understood with the 
necessary legal reservations. 

Except in the mere temporary settlement, collection 
and custody of the property of a decedent, no agent 
appointed by will or otherwise, no public officer em¬ 
powered by act of Congress, can safely venture to deal 
with a decedent’s estate; for either that estate has been 
disposed of by lawful testamentary disposition to de¬ 
visees or legatees, or it has become the property of the 
creditors of the decedent, or it has descended upon 
persons legally entitled by marriage or kinship; and, 
in either case, if it be personal property, it must pass 
through the hands of a duly appointed and judicially 
recognised executor or administrator. If we could 
suppose that the act intended to go beyond this, it 
would be necessary to scrutinize the force of the ex¬ 
pression,—“will or any other writing.” 

“Any other writing” signifies some Avriting, which 
has not the legal effect of a will, or it means nothing. 
In the phrase “Avill or any other writing,” the “other” 
excludes a will. 

Whether the alternative in this provision could have 


45 


any possible effect on the estate beyond the legaliza¬ 
tion of acts of temporary custody, would depend upon 
the question what those writings are, other than a will^ 
by which a citizen of one of the States of this Union, 
who may happen to die abroad, can impart to his per¬ 
sonal property, after his decease, a direction different 
from that prescribed for intestatacy by the law of his 
State. 

What is that writing, not possessed of the legal 
effect of a will of personal assets duly executed by a 
competent person, by means of which a citizen of New 
York or of Louisiana, dying in Paris during a tempo¬ 
rary sojourn there, can take his property out of the 
ordinary course of succession? I think it behooves 
the consul to consider this question well, before he pre¬ 
sumes to follow, in anything heyond the acts of custody^ 
settlement^ and collection prescribed by the act of April 
14, 1792, directions of the decedent by writing not 
possessed in law of the force of a testamentary dispo¬ 
sition, or directions of any agent of the deceased, 
however nominated, unless that agent be the duly ap¬ 
pointed executor or administrator. Otherwise, the 
consul may be called to account by some creditor of 
the deceased, or by a lawfully appointed executor of 
his, or by his family and heirs-at-law. * 

In short, the consul should bear constantly in mind 
that he cannot as consul administer on the estate, nor 
as consul aid any other person in so administering, 
judicial authorization; and that the whole ex¬ 
tent of his consular authority is to guard and collect 
the assets of a decedent, and to transmit them to the 
United States, or to aid others in so guarding, collect¬ 
ing, and transmitting them, to be disposed of here pur¬ 
suant to the law of the decedent’s State. 


4G 


Finally, it may be proper to observe, as to the pro¬ 
vision of the 25th section, by which the President is 
“authorized,” if he see fit, to bestow “the title of con¬ 
sul general” upon any consul of the United States in 
Asia or Africa, that this provision is of doubtful tenor, 
if it be intended to imply that, without it, the Presi¬ 
dent cannot, with advice of the Senate, at any time 
appoint a public officer of the class of consuls, and 
bearing the title of consul general. 

In illustration of this remark, we have the fact that, 
in the civil and diplomatic appropriation act of the 
last session of Congress, there is an appropriation for 
the salary of a consul general for the British provinces 
in North America, while the general act supposes that 
consulates of this rank are to be confined to Asia and 
Africa. (Session Acts 1854-55, p. 763.) 

In truth, the office of consul general may be given, 
as a mere titular designation, to imply rank; but it 
more properly signifies an office with special functions, 
well defined by the law of nations and public usage. 
The consul general superintends and directs, according 
to the instructions, general or special, of his Govern¬ 
ment, the consuls within a particular jurisdiction or 
country. (De Cussy, Keglements Consulaires, p. 70; 
Moreuil, ’Agents Consulaires, p. 18.) 

Such an officer possesses utility, and particular ap¬ 
plication, in foreign countries of extensive but definite 
circumscription, in which there is no proper diplomatic 
representative of the Government, such as the several 
great European colonies, or other governments of that 
order, in Asia, Africa, and America. In all the coun¬ 
tries of Europe, and in such of those of America and 
Asia as enter fully into our treaty system, we have, or 


47 


may have, a minister, of whatever title, who is of 
course, by public law, superior in rank to consuls, and 
their medium of communication with the Government. 
But, in the foreign dependencies of European powers, 
many of which are in themselves great states, with all 
the mechanism of local authority, and in some cases 
enjoying semi-independence under the administration 
of a governor, a captain general, or a pacha, it be¬ 
comes necessary that some consular person should have 
power to communicate with the supreme colonial or 
feudatory chief, in behalf of his colleagues and his 
countrymen; and on the consul residing at the seat of 
Government will naturally devolve the functions, if not 
the title, of consul general. (Be Clercq, Guide des 
Consulats, p. 28.) 

These considerations indicate that the selection and 
appointment of a consul general, even more emphati¬ 
cally than that of consul, must belong to the treaty¬ 
making power in every political society, the power 
which initiates in foreign relations, and which our Con¬ 
stitution has entrusted to the President in consultation 
with the Senate. 

Permit me to add, in conclusion, that the sugges¬ 
tions, which official duty compels me to make, in re¬ 
gard to so many of the provisions of this act, of careful 
discrimination between what is mandatory in a statute, 
and what is recommendatory only, are made with entire 
general deference and respect for the legislative will of 
Congress. 

It happens continually, that phrases, of doubtful 
apparent significancy in the relation of constitutional 
powers, are found in the acts of Congress. It would 
not be convenient to establish, as a rule, that the 


48 


President must refuse to approve all such acts, however 
useful and just on the whole they may be. It is more 
convenient to follow the customary routine of the Gov¬ 
ernment, of reducing any such questionable phrase to 
its true constitutional value by construction, when the 
law comes to be construed and administered. Thus, 
when the statute says, that every collector of the cus¬ 
toms shall 'have authority, with approbation of the 
Secretary of the Treasury, to employ inspectors, (act 
of February 4, 1815, s. 5,) it must be construed to 
mean that the Secretary may appoint and remove such 
inspectors; because the power, here thus in words 
given to collectors, can by the Constitution be devolved 
only on the President or a head of Department. (Mr. 
Legare’s Opinion, March 24, 1843, vol. ii, p. 1577.) 

So when, by the late convention with France, or any 
other, it is said, in words, that officers with consular 
functions and rights, vice consuls and cousular agents, 
may be appointed by the consul, it means appointed by 
the Secretary of State on the presentation of the con¬ 
sul, and removeable by the same authority. 

By affixing his signature to an act or a treaty con¬ 
taining such phrase, the President does not effect any 
change in the Constitution. He cannot take constitu¬ 
tional power in virtue of any clause of an act of Con^ 
gress; nor can he so surrender it. The constitutional 
power of each of the three great departments of the 
Government, respectively, belongs to the offices, not 
the officers, and cannot, by any act or words of theirs, 
be withdrawn from the permanent and pervading 
authority of the Constitution. 

We know how difficult a task it is, in remodeling 
any great department of the public service, to give apt 


expression to all which is included in the assumed 
theory of the act. It requires much circumspection 
and reflection to adapt successfully the new parts of 
the system to the old ones; many lacunoe will remain 
to be filled up; some things will be disturbed^ which 
it was not intended to touch; and when the judge or 
the admistrator comes to deal with the act of legisla¬ 
tion as a practical matter, and to review all its pro¬ 
visions in their relation to one another, and to the pre¬ 
existing provisions of law, he finds himself driven, by 
inexorable force of logic, into consequences of con¬ 
struction not anticipated by the legislator. These un¬ 
foreseen consequences increase in degree or number in 
proportion as the legislative body indulges in the pre¬ 
vailing disposition to enter into the field of mere ad¬ 
ministrative regulations, instead of devoting its atten¬ 
tion to the superior and more important and much 
pretermitted duty of prescribing organic rules and 
generic principles of administration. These final re¬ 
flections it seems not out of place to submit, on your 
account as well as my own, in explanation and apology 
of;* the many questions of construction, which have 
arisen, and could not fail to arise, on a measure of so 
much magnitude as that of remodeling the diplomatic 
and consular systems of the United States. 

Whatever of inevitable imperfection there may be, 
in this initiatory enactment in the right direction, 
will, of course, in due season, receive the attention of 
Congress. 

I have the honor to be. 

Very respectfully, 

C. CUSHING. 


Hon. W. L. Marcy, 

Secretary of State. 


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